3M CO: Faces Class Action Over Hyannis Water Supply Contamination-----------------------------------------------------------------Madeleine List, writing for Cape Cod Times, reports that two lawfirms representing residents affected by the contaminated Hyanniswater supply filed a class action lawsuit against severalcompanies in U.S. District Court in Massachusetts seekingcompensation for those who have fallen ill or experienced othernegative effects from exposure to the water.

The lawsuit names as defendants five manufacturers offirefighting foams containing perfluorinated chemicals PFOS andPFOA, which are believed to have contaminated wells servingresidents in Hyannis, Hyannisport and West Hyannisport. Thefoams were previously used at the nearby Barnstable County Fireand Rescue Training Academy.

About 200 residents have signed on to the class action suit sofar, said Louise Caro, partner at Napoli Shkolnik PLLC, the lawfirm representing the plaintiffs along with the Law Offices ofBrian Cunha & Associates.

The plaintiffs are seeking the establishment of a medicalmonitoring protocol, which would allow members of the classaction suit to receive medical testing for diseases potentiallyconnected to their exposure to the water at the defendants'expense.

"The idea is that you shouldn't have to pay for the testing,"Ms. Caro said. "You shouldn't have to pay for testing for thesediseases that are attributed to the exposure."

PFOA and PFOS can accumulate in the body and lead to illnessesyears down the road, she said. Some diseases linked to highlevels of perflouinated chemicals in the body include kidney andtesticular cancer, ulcerative colitis, preeclampsia, thyroiddisease and high cholesterol, according to the complaint.

A few plaintiffs are already experiencing some of theseillnesses, but plaintiffs don't have to be sick to join the classaction suit, Caro said.

Plaintiffs are also asking to be compensated for personal injuryas well as declining property values, according to the complaint.

A settlement was reached in a separate, related suit brought bythe town of Barnstable against Barnstable County in 2016. Underterms of that agreement, the county will pay the town $2.95million to reimburse it for capital costs, including carbontreatment systems, associated with cleanup of the contaminatedwells.

In December 2017, U.S. District Judge Denise Casper dismissedfive of eight counts brought by Barnstable County against many ofthe same firefighting foam manufacturers named in the classaction lawsuit. Judge Casper dismissed the county's claims thatthe manufacturers were negligent in selling the products that ledto the contamination of soil and groundwater.

Despite the ruling in 2017, Ms. Caro said she believes herclients have a strong case. More information has come outrecently about what the manufacturing companies, particularly 3M,knew about perfluorinated chemicals and when they knew it, Carosaid.

The complaint alleges that manufacturing companies conspired toconceal the true toxic nature of PFOS and PFOA, avoided usingalternative and safer designs for firefighting foams and failedto warn communities where the foams were being used of thepresence of PFOS and PFOA in their products.

"They did not disclose to the purchasers of the material howdangerous it was, and I think that's going to come out more now,"she said. "Likely, they were deliberately vague."

In a statement, 3M denied any wrongdoing.

"3M will vigorously defend this lawsuit," the statement says."3M acted responsibly at all times and will defend its record ofstewardship in connection with firefighting foam."

Ms. Caro said the class action suit is still open to plaintiffswho would like to join. Anyone who consumed water from theHyannis water system on a regular basis is eligible to join thesuit, she said. [GN]

ACCENTCARE INC: Blumenthal Nordrehaug Files Class Action--------------------------------------------------------The San Francisco employment law lawyers at Blumenthal NordrehaugBhowmik De Blouw LLP, filed a class action lawsuit againstAccentcare, Inc., alleging the company failed to pay theirnon-exempt employees working in California for all their overtimehours worked and allegedly failed to provide all legally requiredmeal and rest periods under California law. The pending classaction lawsuit against Accentcare, Inc., is currently pending inthe San Francisco County Superior Court, Case No. CGC-18-565521.

The Complaint alleges that Accentcare, Inc., failed and continuesto fail to accurately calculate and pay PLAINTIFF and the othermembers of the CALIFORNIA CLASS for their overtime worked.Accentcare, Inc., compensates their employees on a non-discretionary incentive program along with an hourly rate.Allegedly, management and supervisors described the incentiveprogram to potential and new employees as part of the cornilleaucompensation package. As a matter of law, the incentivecompensation received by PLAINTIFF and other CALIFORNIA CLASSMembers must be included in the "regular rate of pay." Thefailure to do so has allegedly resulted in a systematicunderpayment of overtime compensation to PLAINTIFF and otherCALIFORNIA CLASS Members by DEFENDANT.

The pending class action lawsuit against Accentcare, Inc., alsoalleges that the company fails to have a policy or practice whichprovided a full off-duty, thirty-minute uninterrupted meal breakto their California non-exempt employees. Consequently,employees working for the California company allegedly forfeitedmeal and rest breaks without additional compensation.

Blumenthal Nordrehaug Bhowmik De Blouw LLP is an employment lawfirm with law offices located in San Diego, San Francisco,Sacramento, Los Angeles, and Riverside Counties. The firm has astatewide practice of representing employees on a contingencybasis for violations involving unpaid wages, overtime pay,discrimination, harassment, wrongful termination and other typesof illegal workplace conduct. [GN]

AIR CANADA: Decision to Stay Global Class Action Overturned-----------------------------------------------------------Michael McKiernan, writing for Law Times, reports that the Courtof Appeal for Ontario struck a blow for access to justice when itallowed a global class action to proceed here, despite the factit involves absent foreign claimants, according to one of thelawyers spearheading the claim.

In Airia Brands Inc. v. Air Canada, a unanimous three-judge panelof the province's top court overturned a motion judge's decisionto stay the action as it related to the absent foreign claimants,ruling that Ontario could assume jurisdiction over them, evenwithout assurances that the court's final disposition would berecognized abroad.

Linda Visser, a partner in the class actions practice group atSiskinds LLP in London, Ont., acts for the plaintiffs, a group ofbusinesses alleging price fixing in the air freight shippingindustry by a number of major airlines.

"It's very important from an access to justice point of view forclass members to be able to bring a claim in Canada, since we areone of only a handful of countries that allows class actions,"she says. "Without some form of collective redress, it'svirtually impossible for parties in those countries to pursue aclaim because it's so expensive.

"The initial decision created some uncertainty in the law withregard to the possibility of an international class, so we werevery pleased that the appeal court has clarified matters,"Ms. Visser adds.

But defence-side lawyers say that allowing claims to proceed onbehalf of plaintiffs who have not consented and may not even beaware of an action unfairly exposes defendants to the possibilityof double recovery. They are pinning their hopes to a leaveapplication currently before the Supreme Court of Canada thatcould yet result in the nation's top court weighing in on theissue.

"It does raise fundamental issues of fairness," saysChris Naudie -- cnaudie@osler.com -- co-chairman of the classactions defence practice group at Osler Hoskin and Harcourt LLP."It's not clear why an Ontario court would want to adjudicate theclaim of an absent foreign claimant if, ultimately, it may not beenforceable in their home jurisdiction.

"It's questionable whether it serves the objectives of the ClassProceedings Act, but I would expect that we will see more caseslike this, which certainly raises the financial stakes fordefendants," adds Mr. Naudie, who was not involved in the appealcourt case.

The matter has its roots in the years between 2000 and 2006, whenthe plaintiffs allege that a group of airlines, including AirCanada and British Airways PLC, conspired to fix air freightprices for shipments in and out of Canada by manipulating supplyor boosting the cost of fuel and security charges.

However, the class action ran into trouble when the defendantschallenged the court's jurisdiction over class members locatedoutside Canada who entered into contracts outside the country.

In August 2015, Ontario Superior Court Justice Lynne Leitch sidedwith the defendants, ruling that Ontario could not assumejurisdiction over the absent foreign claimants because theyneither had any presence in the province nor had they consentedto the claim proceeding here.

"The potential for the multiplicity of further actions by absentforeign claimants is inconsistent with the objectives of classproceedings and contrary to the principles of order andfairness," Justice Leitch wrote, adding that the principle ofcomity would also be offended by asserting jurisdiction in lightof her conclusion that "the court cannot reasonably expect thatits judgment will be recognized in foreign countries."

However, the appeal court panel ruled that Justice Leith erred inher failure to apply the "real and substantial connection" testlaid out by the Supreme Court in its 2012 decision Club ResortsLtd. v. Van Breda to the jurisdiction question. The court thenset its own three-part framework, establishing that jurisdictionmay be asserted over absent foreign claimants when:

* there is a real and substantial connection between thesubject matter of the action and Ontario, and jurisdiction existsover the representative plaintiff and defendants;

* there are common issues between the claims of therepresentative plaintiff and the absent foreign claimants;

* procedural safeguards of adequacy of representation andnotice, as well as the right to opt out, are provided.

"In my view, this framework provides the necessary safeguards toestablish that jurisdiction properly exists and ensures theprotection of the values of order and fairness," Appeal CourtJustice Sarah Pepall wrote on behalf of the panel, before goingon to find that the foreign claimants in the air cargo case metthe test for jurisdiction.

Despite their disappointment, those on the defence side of thebar admit they saw the appeal court reversal coming.

"I thought Justice Leitch's approach was a rational and logicalway to deal with absent foreign claimants," says Ranjan Agarwal-- agarwalr@bennettjones.com -- a partner in the Toronto officeof Bennett Jones LLP, noting that most of the case law involvingthe "real and substantial connection" test relates to defendants,rather than plaintiffs.

"On the other hand, I wasn't surprised that the Court of Appealdidn't want to stray too far from the existing test fordefendants and apply a different one to plaintiffs," he adds.

"It's too bad if they don't take the case, because if you pollmembers of the bar, you'll find there is desperation for theSupreme Court to finally offer a comprehensive take on themultitude of jurisdictional issues that have vexed multi-jurisdictional class actions," he says.

"It's an interesting issue that has hallmarks of going up to theSupreme Court," says Mr. Naudie, who also has his fingerscrossed. "Jurisdiction is a core issue and more and more claimsare including foreign class members with Canadian proceedings."

"It simplifies the framework and lets everyone know what they canexpect going forward," she says.

In addition, Teodorescu says the potential financial gains toclass from the addition of absent foreign claimants will betempered in many cases by the procedural burdens they bring withthem.

"There is a heavy onus on plaintiffs' counsel to get out notices,which can be an expensive and time-consuming process," she says.For example, the appeal court judgment notes that, following asettlement with some of the defendants in the air cargo case, theplaintiffs spent more than $5 million to effect notice to 310,000people in 140 countries.

If the appeal court decision stands, Mr. Agarwal says, defendantlawyers will need to warn their clients about the risk of doublerecovery in countries that will not recognize any judgment thatresults in an Ontario action.

"It's an open question as to how companies will respond to thatrisk," he says.

By making common issues a part of the test for jurisdiction overabsent foreign claimants, Mr. Agarwal says, the appeal court mayhave also created evidentiary issues for defendants.

"It can take lot of money and resources to marshal evidence thatnarrows and addresses common issues earlier in the proceedings,which may be too much for some defendants to bear," he explains."But I've learned over the last 15 years that our clients arevery good at responding to risk factors. To the extent that thispresents a new one, they will find a way to respond.

"Only time will tell how important a decision it is," Mr. Agarwaladds. [GN]

ALLEGIANT TRAVEL: Rosen Law Firm Files Securities Class Action--------------------------------------------------------------Rosen Law Firm, a global investor rights law firm, on April 24disclosed that it has filed a class action lawsuit on behalf ofpurchasers of the securities of Allegiant Travel Company (NASDAQ:ALGT) from June 8, 2015 through April 13, 2018, both datesinclusive ("Class Period"). The lawsuit seeks to recover damagesfor Allegiant investors under the federal securities laws.

NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL ACLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOURETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DONOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE

According to the lawsuit, defendants throughout the Class Periodmade false and/or misleading statements and/or failed to disclosethat: (1) Allegiant lacked adequate systems to ensure itsaircraft were being properly maintained; (2) consequently,Allegiant was not operating responsibly and ethically, andproviding safe working conditions for its employees; and (3) as aresult, defendants' public statements were materially false andmisleading at all relevant times. When the true details enteredthe market, the lawsuit claims that investors suffered damages.

A class action lawsuit has already been filed. If you wish toserve as lead plaintiff, you must move the Court no later thanJune 25, 2018. A lead plaintiff is a representative party actingon behalf of other class members in directing the litigation. Ifyou wish to join the litigation, go tohttp://www.rosenlegal.com/cases-1325.htmlto join the class action. You may also contact Phillip Kim or Zachary Halper ofRosen Law Firm toll free at 866-767-3653 or via email atpkim@rosenlegal.com or zhalper@rosenlegal.com.

Rosen Law Firm -- http://www.rosenlegal.com-- represents investors throughout the globe, concentrating its practice insecurities class actions and shareholder derivative litigation.The Rosen Law Firm was Ranked No. 1 by Institutional ShareholderServices for number of securities class action settlements in2017. The firm has been ranked in the Top 3 each year since2013. [GN]

ALMOST FAMILY: Court Refuses to Enjoin $2.4-Bil. Merger-------------------------------------------------------The United States District Court for the Western District ofKentucky, Louisville Division, denied Plaintiff's Motion forPreliminary Injunction to preliminarily enjoin the stockholdervote on the proposed acquisition, (Proposed Merger), of AlmostFamily, Inc. by a subsidiary of LHC Group, Inc., in the casecaptioned LEONARD STEIN, Individually and on Behalf of All OthersSimilarly Situated, Plaintiff, v. ALMOST FAMILY, INC., et al.,Defendants, Civil Action No. 3:18-CV-129-TBR (W.D. Ky.).

In order to convince Almost Family shareholders to vote in favorof the Proposed Merger, the Board authorized the filing of a FormS-4 Registration Statement (S-4) with the Securities and ExchangeCommission.

In his Complaint, the Plaintiff alleges that the RegistrationStatement was materially incomplete and misleading, and that ittherefore violated Sections 14(a) and 20(a) of the Securities andExchange Act of 1934 (Securities Exchange Act). It is further thePlaintiff's contention that the materially incomplete andmisleading S-4 independently violates both Regulation G (17C.F.R. Section 244.100) and SEC Rule 14a-9 (17 C.F.R. Sec240.14a-9), each of which constitutes a violation of Section14(a) and 20(a) of the Exchange Act.

The impetus of the Plaintiff's claim is that (1) the RegistrationDocuments omit information required by Regulation G to beincluded, and (2) that the Registration Documents omit materialinformation, as that term is defined and explained by the SupremeCourt in TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438 (1976).

Likelihood of Success on the Merits

The first factor of the analysis inquires after the Plaintiff'slikelihood of success on the merits of the instant lawsuit. TheSixth Circuit has made clear that, while the four-factor standardfor a preliminary injunction requires balancing by the courts, afinding that there is simply no likelihood of success on themerits is usually fatal.

Regulation G

Title 17 C.F.R. Section 244, also referred to as Regulation G,provides the general rules regarding the disclosure of non-GAAPfinancial metrics and their GAAP counterparts. The parties'difference in opinion in this case is with respect to whether theinformation contained in the Registration Documents were subjectto Regulation G. Regulation G provides that whenever aregistrant, or person acting on its behalf, publicly disclosesmaterial information that includes a non-GAAP financial measure,the registrant must accompany that non-GAAP financial measurewith: (1) [a] presentation of the most directly comparablefinancial measure calculated and presented in accordance with[GAAP]; and (2) [a] reconciliation.

This language indicates that the non-GAAP metrics are not, in thecompany's view, material, that they were provided to Guggenheimsolely for the purpose of conducting its analysis and issuing itsfairness opinion, and that the numbers are not included toinfluence voting or to indicate which way shareholders shouldvote.

Thus, while the Plaintiff's argument that the general rule underRegulation G applies, Almost Family has included specificlanguage in its Registration Documents indicating that, under thecircumstances, they should fall under the exemption in 17 C.F.R.244.100(d). In short, the Plaintiff has not demonstrated a stronglikelihood of success on his Regulation G argument.

Plaintiff's Materiality Argument

The Plaintiff also argues that the GAAP metrics and the values ofthe line items utilized to calculate UFCF were material andconsequently, Almost Family's failure to include these items inthe Registration Documents rendered the non-GAAP metrics and theUFCF-related figures materially misleading. Rule 14a-9 prohibitsthe inclusion in a proxy statement of 'any statement which, atthe time and in the light of the circumstances under which it ismade, is false or misleading with respect to any material fact,or which omits to state any material fact necessary in order tomake the statements therein not false or misleading.'

Here, the explicit language, which states unequivocally thatAlmost Family does not consider the non-GAAP metrics to bematerial due to the inherent risks and uncertainties that comealong with such figures, seems to undercut the Plaintiff'sargument or, at the very least diminish, his likelihood ofsuccess on the merits of this argument. Where the company itselfdisclaims the materiality of such metrics before actuallydisseminating the relevant voting materials to its shareholders,it is a speculative argument that contends the terms are stillmaterially misleading under TSC Indus., 426 U.S. at 449.

This is because, before something may be materially misleading,it must itself first be a material term. And although AlmostFamily's claim in the Registration Documents that the non-GAAPmetrics were not material is likely not dispositive in and ofitself, it certainly tips the scales more in favor of thecompany.

Irreparable Injury

The Plaintiff argues that the failure to disclose all materialinformation has long been recognized as constituting irreparableharm, especially in the context of a merger such as this. ThePlaintiff goes on to argue that the omitted informationidentified in the Complaint and discussed here is material toshareholders in rendering a decision regarding a proposed mergerand the failure to disclose this information cannot be remediedthrough a monetary damages claim after the consummation of themerger.

The Plaintiff's argument regarding the nondisclosure of the GAAPmetrics in the Registration Documents appears to indicate thatthese numbers could potentially hold the key to this hypotheticalundervaluation of Almost Family stock. This, in the Court's view,is insufficient to warrant its granting of the extraordinaryremedy of a preliminary injunction. The Plaintiff's complained-ofharm remains speculative at this stage and is far from certainand great.

Finally, pursuant to the inversely proportional relationshipinherent between the first and second prongs or, as the Plaintiffhas referred to it, the sliding scale approach to the preliminaryinjunction analysis, the Court notes that the Plaintiff hasfailed to adduce sufficiently supported legal arguments on eitherof the first two prongs to tip the scales back in his favor. Thisis to say that each of the first two factors weigh, even if onlyslightly, in favor of the Defendants, or at the very least not infavor of the Plaintiff, thereby rendering the sliding scale of nohelp to the Plaintiff here.

Harm to Others & The Public Interest

This Court is cognizant of the fact that, should an injunction begranted, a knot could be thrown into the proposed $2.4 billionmerger between Almost Family and LHC; negative financialconsequences could result on both sides to both sets ofshareholders; also, the deal could simply fall apart altogether.

Conversely though, the financial consequences could be slight.Certainly, the mere prospect of negative financial consequencesdoes not, and cannot, impede a judicious decision from this Courtregarding whether to issue an injunction or not, but the harm toAlmost Family and LHC shareholders is something the Court mustconsider in weighing the four preliminary injunction factors.

Instead, in that case, the district court found that enjoiningthe shareholder vote [would] upset the corporate governance modeland threaten to harm shareholders who stand to realize asubstantial premium on their shares. The public interest wouldnot be furthered by granting a preliminary injunction under thesecircumstances.

A full-text copy of the District Court's March 22, 2018Memorandum Opinion and Order is available athttps://tinyurl.com/yadysqyk from Leagle.com.

AMERICAN FIDELITY: Teachers' Class Action Goes to Federal Court---------------------------------------------------------------Blake Deshazo, writing for The Selma Times-Journal, reports thata class action complaint against American Fidelity Assurancefiled on behalf of several teachers in Dallas County has made itsway to federal court.

The complaint, which was filed in February, by Birminghamattorney Stephen Wadsworth, lists five teachers in Dallas Countyand one in Montgomery County.

"It was removed from Dallas County to federal court, and it's nowin the Southern District of Alabama," Mr. Wadsworth said.

Four of the six teachers listed in the complaint can be found onthe Selma City Schools employee directory. The complaint allegesAmerican Fidelity, which specializes in auto, education,municipality and healthcare insurance, sold teachers "newpolicies through a series of fraudulent statements andomissions."

"The new policies were inferior to the old ones in that theyprovided no long-term care coverage," the complaint reads."American Fidelity did not provide information to plaintiffswhich would have allowed them to make an informed decision underAlabama law."

The complaint alleges nearly 500 teachers were "deceived" byAmerican Fidelity. According to the complaint, when the teacherspurchased new policies that did not have long-term care, itcancelled "$20 million worth of Fidelity Life Policies worth upto $60 million in long-term care."

"Essentially, these policies pay off a couple of different ways.It could pay off in terms of life insurance, or it could pay offin terms of covering nursing home, assisted living and otherexpenses like that," Mr. Wadsworth said. "It's a life insurancepolicy that could be converted to long-term care if you requirelong-term care."

According to Mr. Wadsworth, the alleged fraud took place over thelast year.

"We're hoping to make the teachers whole," Mr. Wadsworth said."We're hoping to put them in the position they were in before thesale, before the fraud."

The complaint states American Fidelity did not tell the teacherspurchasing new policies that it would cancel their originalpolicies, which included the long-term care.

"American Fidelity did not reveal to the plaintiffs thatpurchasing their policy would cause the plaintiff's Fidelity Lifepolicies to be cancelled," the complaint reads. "In most casesthey told them they were replacing the policies but did notindicate on the application that it was a replacement or completethe required replacement paperwork."

Mr. Wadsworth said it is still early in the process, and he ishoping the complaint makes it past a motion to dismiss, so it canmove forward.

"After the motion to dismiss is decided, normally at that point,you go into discovery. You start taking depositions. You receivedocuments. That's the next step in litigation after a motion todismiss," he said.

The motion to dismiss, according to Wadsworth, was filed byattorneys representing American Fidelity. Phone calls toAmerican Fidelity seeking comment on the complaint have not beenreturned.

"We're still just trying to feel out where we are and figure outwhere the defendants and the judge want to go with this and howwe want to treat it," he said.

"We're committed to this case and look forward to bringing it, wehope, to a speedy and successful resolution." [GN]

AMP: Three Law Firms Mull Shareholder Class Actions---------------------------------------------------Simone Ziaziaris, writing for news.com.au, reports that wealthmanagement giant AMP could face three shareholder class actionsafter it admitted to cheating customers and lying to thecorporate regulator.

Law firms Shine Lawyers, Slater and Gordon and Quinn EmanuelUrquhart & Sullivan are investigating class actions against AMPon behalf of shareholders, following the scandals revealed at thefinancial services royal commission.

Slater and Gordon and Shine on April 24 said AMP may havebreached continuous disclosure obligations by failing to informthe market of the company's dealings with the AustralianSecurities and Investments Commission.

Slater and Gordon head of class actions Ben Hardwick said the AMPclaim had the potential to be one of Australia's biggest investorclass actions.

"More than a billion dollars has been wiped from AMP's market capsince these revelations were made public during the royalcommission hearings and it has left thousands of investorsreeling," Mr Hardwick said.

"We allege that this conduct was both unlawful and unethical andreflected serious compliance problems within AMP, and the markethad a right to be informed about what they were buying into."

Quinn Emanuel on April 23 said it will file a class actionagainst AMP within two weeks, as it had started investigating anaction after the wealth manager's share price began falling inMarch.

AMP's market value has fallen by more than $2 billion since itsexecutives began giving testimony to the royal commission, withits shares down for a seventh consecutive trading session onApril 24, down 2.4 per cent at $4.07 at 1445 AEST.

The 169-year-old company has admitted it charged customers feesfor financial advice that was never delivered, and repeatedlylied to ASIC about its behaviour.

Chief executive Craig Meller resigned on April 20, and said hewas "personally devastated" after learning of behaviour that mayyet result in criminal charges.

AMP and the nation's big four banks have already paid almost $219million in compensation to more than 310,000 financial advicecustomers charged fees for no service. [GN]

AMP: Slater and Gordon Mulls Flammable Cladding Class Action------------------------------------------------------------Duncan Hughes, writing for The Australian Financial Review,reports that Slater and Gordon is considering a class action onbehalf of owners and residents of apartments in Victoria withflammable external cladding. The law firm is already involved inmore than 25 class actions in a range of other sectors, includingagainst AMP.

Earlier in April a separate suit was announced, seekingparticipants in a $4.2 billion class action on behalf ofapartment owners and residents.

Phil Dwyer, national president of the Builders' Collective ofAustralia, a lobby group to improve buildings standards andregulations, said additional class actions are being consideredfor other defective work by developers and builders.

"Dangerous cladding has been used on buildings without fear ofany punishment by regulators," Mr Dwyer said.

Law firm Adley Burstyner and Roscon Property Services ispreparing the first round of legal actions on behalf of Victorianowners, which is expected to roll on to NSW, non-residentialbuildings, then other states and territories.

Both law firms are seeking registrations of interest to establishwhether there is enough backing to make the actions worthwhile.

They warn that many apartment owners, who each face between$20,000 and $40,000 in repair bills, are under financial pressureto complete the repairs, particularly elderly and first time homebuyers.

A Slater and Gordon spokesman said it is considering a range ofoptions.

Fears about the dangers of flammable cladding have increasedsince last year's Grenfell Tower fire in London that killed 70and injured another 70.

In Melbourne, a fire in 2014 raced up 13 floors of the Lacrossebuilding in Docklands in about 10 minutes, leading to theevacuation of more than 450 people.

Apartment owners are fighting LU Simon over who should pay thecosts of replacing the cladding in the Victorian Civil &Administrative Tribunal in a case due to start in September. Itis unclear how the class action bid will be affected by thiscase.

Adley Burstyner estimate a class action seeking rectification andcompensation for losses caused by defective cladding could takeone to three years.

It is considering no-win, no-fee payment to secure outcomes forthe owners' corporation without need for a special resolutionwith a 75 per cent majority which is difficult to achieve becauseof detached and passive investors.

NSW has identified 1000 buildings with potentially dangerouscombustible cladding, and Victoria has drawn up a list of 1400.[GN]

AMPLE HILLS: "Kiler" Suit Says Website not Blind-accessible-----------------------------------------------------------Marion Kiler, Individually and as the representative of a classof similarly situated persons, Plaintiff, v. Ample HillsCreamery, Inc., Defendants, Case No. 18-cv-01872 (E.D. N.Y.,March 28, 2018), seeks preliminary and permanent injunction,compensatory, statutory and punitive damages and fines,prejudgment and post-judgment interest, costs and expenses ofthis action together with reasonable attorneys' and expert feesand such other and further relief under the Americans WithDisabilities Act, New York State Human Rights Law and New YorkCity Human Rights Law.

Ample Hills Stores provide stuffed ice cream and other relatedmerchandise. They also operate a website known as Amplehills.comwhich provides consumers with access to an array of goods andservices offered to the public by the Ample Hills Stores,including, the ability to view food items, the ability topurchase food items for delivery and to obtain information aboutthe Store history, location and hours. Kiler browsed and intendedto purchase ice cream. Plaintiff is legally blind and claims thatDefendant's website cannot be accessed by the visually-impaired.[BN]

According to the Complaint, Boykin was employed by Anadarko as aRig Welder. He alleges that Anadarko improperly classified himand other Rig Welders as independent contractors, and proceededto pay them only straight-time wages, even when they worked inexcess of 40 hours per week. Thus, he alleges that Anadarkoviolated the provisions of the Fair Labor Standards Act ("FLSA").

Boykin seeks to pursue the matter as an FLSA collective actionunder 29 U.S.C. Section 216(b). In the instant motion, he seeksan order from the Court certifying a class of Rig Welders, andauthorizing issuance of notice and consent forms to affectedemployees, allowing them to opt into the lawsuit.

Judge Krieger finds that Boykin has made a substantial showingwarranting notice to any Rig Welder, employed by Anadarko throughDT Bar Welding Services, Inc., who failed to receive overtime payfor hours exceeding 40 in a week. He cannot say that Boykin hasmade a substantial showing that any other Rig Welder employed byAnadarko and paid through any other service company necessarilyexperienced the same circumstances.

As to Boykin's proposed notice to be sent to eligible employees,the Judge finds several components of the proposed notice thatare unacceptable. Most significantly, he notes that Section 6,entitled "Your Legal Representation If You Join" and stating that"If you choose to join this collective action lawsuit, yourattorneys will be [Mr. Boykin's counsel]" improperly abridges therights of opt-in claimants to select their own counsel or tochoose to represent themselves. Similarly, the proposed consentform, which requires all opt-in Plaintiffs to allow Boykin andhis counsel to make all decisions regarding the litigation ontheir behalf also abridges their right to assert, compromise, orproceed to trial on their own claims if they so choose. He findsother portions of the proposed notice and consent forms to bemisleading.

Judge Krieger attaches to the Order a form of notice and consentform that he has approved in other cases, and has appropriatelymodified to reflect the circumstances of the case. It is thenotice and consent form the Judge approves.

The Judge adopts, the following schedule for the giving of noticeand the receipt of consents:

a. 14 days from the date of the Order: Anadarko will produceto Boykin's counsel the names, last-known mailing address, e-mailaddresses (if known), and dates of employment for employeesmeeting the definition.

b. 28 days from the date of the Order: Boykin's counsel willsend copies of the attached Notice and Consent Form to affectedemployees. The notice may be given by mail, e-mail, or both atthe counsel's discretion.

c. 60 days from date of mailing of Notice: Consent formsmust be returned to Boykin's counsel. The counsel will file allreturned consent forms within 14 days of their receipt.

Boykin requests leave to perform additional steps to contactaffected employees, including the sending of reminder e-mails andmaking telephone calls. The Judge declines to authorize suchsteps prophylactically. If Boykin concludes that mail and e-mailnotice has been substantially ineffective at reaching affectedemployees, he is free to advise the Court and move for additionalappropriate relief at that time.

For the foregoing reasons, Judge Krieger granted in part anddenied in part Boykin's Motion For Conditional Certification, asset forth. Attachments: Notice form and Consent Form - IN THEUNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO ChiefJudge Marcia S. Krieger Civil Action No. 17-cv-02309-MSK-STV BOYDBOYKIN, Plaintiff, v. ANADARKO PETROLEUM CORPORATION, Defendant.

A full-text copy of the Court's March 21, 2018 Opinion and Orderis available at https://is.gd/aYdz1E from Leagle.com.

Plaintiffs are cable splicers, construction workers, laborers,equipment operators, forepersons, flaggers and truck drivers whoearned, but did not receive all compensation due for regular timeworked and for time and one-half pay for time spent working morethan forty hours per work including double pay for time spentworking on emergency jobs, weekend jobs and evening jobs.

Anchor Construction does business as a construction contractorworking at various sites in Maryland and the District ofColumbia. Anchor is headquartered at 2254 25th Place NE,Washington, DC 20018, and has offices in Maryland at 3005Washington Blvd., Baltimore, MD 21230 and 2300 Beaver Road,Landover, MD 20785. [BN]

ARIZONA: Legislator Mulls Class Action Over Teachers' Strike------------------------------------------------------------Laurie Roberts, writing for azcentral, reports that on April 24House Majority Arizona State Representative Kelly Townsendannounced on Twitter that she's consulting with lawyers about thepossibility of a class-action lawsuit on behalf of Arizonansimpacted by a teacher strike. She told me she's hoping to be aplaintiff in the lawsuit, given that her son's graduation may bedelayed.

You know, the politicians who systematically have stiffed theschools over the last decade to the point where the state nowinvesting $924 less on a child's education now than it was adecade ago?

'Is my son going to graduate?'Ms. Townsend told azcentral's Roberts that she's heard from anumber of people who will be harmed by a strike, including herown father and sister who have already bought airline tickets tofly in for her son's high school graduation, which presumablywould have to be postponed.

"Is my son going to graduate? Do we need to change the tickets?Every day that you have to wait becomes more expensive. We don'tknow."

Ms. Townsend said she's heard that some teachers are tellingtheir students the strike could last for a month.

"People are suffering from financial, occupational, emotionalharm . . . ,'' she said. "People had travel plans, occupationplans. Some people are needing to go into the military. Thereis a wide spectrum of inconveniences."

Ms. Townsend said she'd like to be a plaintiff in the lawsuit.

"If I have standing I absolutely will."

As for who to sue, that, she says, would be up to the lawyers.She declined to identify the law firms involved, saying there areseveral working together and that an announcement would be comingin the next day or so. [GN]

The Court has reviewed and considered the Joint Request forDismissal of Class Action Complaint Pursuant to Rule 41 and theJoint Stipulation of Settlement. The Court orders this actiondismissed without prejudice.

A full-text copy of the District Court's March 22, 2018 Order isavailable at https://tinyurl.com/y7ogtl6s from Leagle.com.

The Plaintiffs filed an Amended Consolidated Class ActionComplaint for Violations of the Federal Securities Laws.

It appears, however, that this document was not filed withintwenty-one days after service of the November 21, 2017Consolidated Class Action Complaint; within twenty-one days afterservice of Defendants' January 26, 2018 motion to dismiss; withthe written consent of Defendants; or with leave of Court.

Accordingly, the Court directed the Plaintiffs to correct thedeficiency in the filing of the Amended Consolidated Class ActionComplaint. Otherwise, the Court will strike the AmendedConsolidated Class Action Complaint.

A full-text copy of the District Court's March 22, 2018 Order isavailable at https://tinyurl.com/y9ddnc2r from Leagle.com.

AYALON INSURANCE: Levitan Attorney Discusses Class Action Ruling----------------------------------------------------------------Aviv Klepner, Esq. -- avivk@levitansharon.co.il -- of LevitanSharon & Co, in an article for Lexology, wrote that a classaction is a claim filed on behalf of a group of people, whichraises substantive questions of fact or law which are common toall of the group's members. A class action allows all of theindividual claims to be resolved in a single proceeding broughtby a representative plaintiff and his or her attorney.

A class action is dealt with in two stages. During the firststage, a motion is filed with the court for the certification ofthe claim as a class action. Only if certification is grantedwill the court proceed to the second stage of hearing the claimon its merits.

Section 4(a) of the Class Action Law 2006 provides a list ofpotential applicants who are entitled to file an application forthe certification of a class action. One of the options is:

"a person who has cause of action in a claim or matter stated insection 3(a), which raises substantive questions of fact or Lawcommon to all members of a group of persons -- in the name ofthat group."

The supreme courts have ruled that the individual cause of actionof the representative plaintiff against a defendant is a basiccondition for the certification of a class action. In theabsence of an individual cause of action, the motion should bedismissed.

Motion to certify claim as a class action

In 2017 Noa Metz (the plaintiff) filed a claim and a motion tocertify the claim as a class action against Ayalon InsuranceCompany Ltd (the insurer).

The plaintiff argued that in 2015 she had been involved in a caraccident at a junction. The driver of another car had failed toobey a stop sign, resulting in a collision which damaged theplaintiff's car.

Since the other driver was covered under third-party liabilityinsurance issued by the insurer, the plaintiff approached theinsurer and demanded the payment of insurance benefits for theproperty damage caused in the accident.

However, the insurer paid the plaintiff only 85% of the actualdamage and notified her that following the examination of theparties' versions and the damaged parts of the cars involved, ithad deducted the plaintiff's contributory negligence at a rate of15%.

Based on the above, the plaintiff argued in her claim that theinsurer automatically and arbitrarily deducted a portion of theinsurance benefits in cases of junction accidents. The deductionwas allegedly made without examining whether the third party wasindeed negligent under the concrete circumstances of theaccident. Further, the insurer's payment notifications did notexplain the specific reasons for the deduction.

The insurer filed a detailed response to the motion to certifythe claim as a class action, raising various defencearguments.(3)

The insurer argued, among other things, that the plaintiff had noindividual cause of action. This was based on the fact thatfollowing the payment of 85% of the damage claimed, the plaintiffhad negotiated with the insurer and agreed to a settlement,according to which the insurer had paid the plaintiff anadditional 7.5% of the damage. The insurer presented the waiverand release form signed by the plaintiff which prevented anyfurther actions against the insurer.

Decision

Following the insurer's response and the disclosure of the waiverand release form, the plaintiff decided to withdraw her claim andthe motion to certify the claim as a class action.

The parties filed a motion for withdrawal for the court'sapproval, which had recently been granted. The court ruled thatthe plaintiff had admitted that it would be difficult for her toprove an individual cause of action against the insurer, andreferred to the waiver and release form attached to the response.

The court pointed out that the insurer had raised further defenceallegations which were unrelated to the plaintiff's cause ofaction.

Based on the above, the court was convinced that the proceedingshould be terminated and that no steps should be taken in orderto find a replacement representative plaintiff. The claim wastherefore dismissed and the motion to certify the claim as aclass action was struck out with no costs. [GN]

BAI BRANDS: Sued in Calif. Over "Natural" Fruit Drink Labeling--------------------------------------------------------------Keller and Heckman LLP, in an article for The National LawReview, wrote that a national putative class action lawsuit (withproposed in-state subclass) was filed in California federal courton April 19, 2018 against Bai Brands, LLC alleging violation ofCalifornia's Consumers Legal Remedies Act, Unfair CompetitionLaw, and common law, as well as the U.S. Food and DrugAdministration's (FDA) regulations. The plaintiff alleges thatBai Brands falsely advertised fruit drinks as 'natural' and didnot disclose malic acid, alleged to be a synthetic flavor used tomimic fresh fruit, on front of package labeling. (Branca v. BaiBrands, LLC, 3:18-cv-00757).

Natural lawsuits continue to proliferate despite court orderedstays being granted in several challenges due to pending FDAaction. As previously covered on this blog, FDA is consideringwhether to regulate the term "natural," having collected 7,687comments in 2016 on use of the term 'natural' on human foodlabeling.

Commissioner Scott Gottlieb acknowledged the lack of clarity onthe meaning of 'natural' in March 29, 2018 remarks at theNational Food Policy Conference in Washington, DC and said FDA"will have more to say on the issue soon." It remains to be seenhow long courts will continue to wait for FDA to act. [GN]

BAYER CROPSCIENCE: Neonicotinoid Class Action Proceeds in Quebec----------------------------------------------------------------Beyond Pesticides reports that a class-action lawsuit against twomanufacturers of neonicotinoid insecticides is moving ahead inQuebec, Canada after an appeal to block the case by the Canadiangovernment and the chemical companies, Bayer and Syngenta, wasdismissed. In February 2018, the case, brought by a beekeeper,was allowed to proceed to trial by the Quebec Superior Court.

Quebec queen bee breeder, Steve Martineau, conducted tests onwater and his dead and dying bees and found traces ofneonicotinoids. His suit alleges that Bayer and Syngenta werenegligent in the manufacture and sale of neonicotinoids inQuebec, and are responsible for damages that he and other classmembers suffered under Article 1457 of the Quebec Civil Code.Bayer and Syngenta challenged the application on a number ofgrounds including the assumption that they had manufactured theneonicotinoids which killed Martineau's bees. The class in thiscase was authorized for all persons in Quebec who own or ownedbees in the affected area since 2006. Mr. Martineau estimates hehas lost about $20,000 a year to present due to the effects ofneonicotinoids on his bee population (Martineau v. BayerCropScience Inc. CALN/2018-007)

"We're suing on behalf of Quebec beekeepers whose bees were non-productive or killed," Mr. Martineau's lawyer, Samy Elnemr said.In addition to the Quebec class-action suit, a Canada-widelawsuit against neonicotinoid manufacturers is also beingprepared to be filed and will be put before the courts soon.

On February 19, 2018, the provincial government introduced newrestrictions on pesticides considered harmful to honey bees,including neonicotinoids. Under the changes, farmers will have toget permission from a certified agronomist before using certainpesticides on crops. The restricted pesticides include threetypes of neonicotinoids, as well as chlorpyrifos and atrazine,which has been banned in Europe for more than a decade. To ensurethe implementation of these new regulations goes smoothly, theEnvironment Ministry will establish a monitoring committee tooversee the process. The province has already allocated $14million over five years to assist farmers in reducing pesticiderisks and adapting to the new measures. Advocates say the newrules represent a compromise. These chemicals may continue to beused, but inserting agronomic experts with an eye for both theeconomic and health concerns surrounding the use of highly toxicpesticides into the process may be a strategy to significantlyreduce pesticide use. The good news is that by also improvingrecordkeeping, Quebec's strategy can be closely evaluated toensure the approval process is not simply a rubber stamp forpesticide use.

Numerous scientific studies implicate neonicotinoid pesticides askey contributors to the global decline of pollinator populations.Research on neonicotinoids has been consistent in linking theiruse to reduced learning in bees, as well as other impacts, suchas those on colony size, and reproductive success. Studieslooking at effects on birds reports that songbirds exposed towidely used insecticides, like neonicotinoids, fail to properlyorient themselves for migration, the first such study that addsweight to arguments that pesticides are a likely cause in thedecline of migratory bird populations. U.S. beekeepers lost anunsustainable 33% of their hives between 2016 and 2017.

Neonicotinoids are also detected regularly in the nation'swaterways at concentrations that exceed acute and chronictoxicity values for sensitive organisms. A new report from theU.S. Geologic Survey (USGS) finds neonicotinoid contamination ofthe Great Lakes that threatens aquatic life. The most recentaquatic assessment for imidacloprid finds that imidaclopridthreatens the health of U.S. waterways with significant risks toaquatic insects and cascading effects on aquatic food webs. As aresult of risks to aquatic organisms, the Canadian pesticideregulatory agency has recommended banning imidacloprid, adecision on which has been delayed. In Europe, a recent surveyfinds that streams across the United Kingdom (UK) arecontaminated with neonicotinoids. The European Commission met onDecember 12 and 13, 2017 to decide on a proposal to extend the2013 neonicotinoid ban to all outdoor crops, but this decisionwas delayed. The issue is expected to be on the agenda again in2018. [GN]

In the consolidated putative securities fraud class action, thepurchasers of BofI's stock assert claims against BofI and severalcorporate officers for violations of Sections 10(b) and 20(a) ofthe Securities Exchange Act of 1934. On Feb. 1, 2016, the Courtappointed Houston Municipal Employees Pension System as the LeadPlaintiff.

On April 11, 2016, the Lead Plaintiff filed a First AmendedComplaint ("FAC"). The Defendants filed a motion to dismiss theFAC on the grounds that the FAC (1) failed to identify false ormisleading statements and (2) did not plead sufficient factsgiving rise to a strong inference of scienter.

The Court noted that many of the misrepresentations alleged inthe FAC fell short of the Private Securities Litigation ReformAct (PSLRA)'s heightened standards. It found, however, that theFAC's allegations were insufficient to create a strong inferenceof scienter on the parts of Defendants Micheletti, Grinberg,Mosich, and Argalas, and dismissed the claims against thosedefendants without prejudice.

On Nov. 25, 2016, the Lead Plaintiff filed a Second AmendedComplaint ("SAC"). The Defendants again moved to dismiss.Again, the Court granted in part and denied in part. Noting thatthe SAC -- like the FAC -- was excessive in length, the Courtfound it helpful to delineate which of the allegedmisrepresentations were actionable, and which were not. TheCourt explained that the SAC alleged actionable fraudulent ormisleading statements as to BofI's loan underwriting practicesand as to its internal controls and compliance infrastructure,but did not sufficiently demonstrate that the Defendants'statements about its Allowance for Loan Losses, Netincome/diluted price per share, Loan-to-Value Ratio, orundisclosed lending partnerships are actionable under thesecurities laws.

Noting that the SAC added no new allegations of scienter on theparts of Micheletti, Grinberg, Mosich, and Argalas, the Courtagain granted the motion to dismiss the Section 10(b) claimsagainst them. The Court nonetheless found the new control personallegations sufficient to state plausible Section 20(a) claimsagainst all the Defendants.

On Sept. 29, 2017, the Defendants filed a motion for judgment onthe pleadings in which they argued the Lead Plaintiff had notpled with sufficient particularity that a disclosure of thefalsity of the Defendants' misrepresentations caused the LeadPlaintiff loss. The Court agreed and granted the motion.Because that was the first time the Defendants argued that theLead Plaintiff failed to plead loss causation adequately, theCourt granted the Lead Plaintiff leave to amend.

On Dec. 22, 2017, the Lead Plaintiff filed the now-operative TAC.As the Lead Plaintiff explains in its memorandum in opposition tothe instant motion, the TAC is intended to be responsive not onlyto the Court's judgment on the pleadings ruling, but also to theCourt's earlier ruling on the Defendants' motion to dismiss theSAC.

The Defendants filed the instant motion to dismiss on Jan. 19,2018. They Defendants argue that the new allegedmisrepresentations in the TAC are not actionable and that the TACagain fails to plead loss causation adequately. The Defendantsalso argue that because Section 20(a) claims require a violationof the securities laws, the TAC's failure to state a claim ofviolation of Section 10(b) requires dismissal of the LeadPlaintiff's Section 20(a) claims.

In sum, Judge Curiel concludes that the TAC's allegations areinsufficient to meet the applicable heightened pleadingstandards. Because the TAC fails to state a plausible claim fora violation of the securities laws, it also fails to state aviolation of Section 20(a).

This was the Lead Plaintiff's third iteration of its complaint,and it appears that any further amendment would not surviveanother motion to dismiss. The Judge concludes that anotheropportunity to amend is not warranted. As a result, he grantedthe Defendants' motion to dismiss and dismissed the LeadPlaintiff's claims against the Defendants with prejudice.

A full-text copy of the Court's March 21, 2018 Order is availableat https://is.gd/ASr5Pw from Leagle.com.

The case arises from Defendant BHCC's alleged failure to fundvarious employee benefit programs, including health and lifeinsurance plans and a retirement plans. The Plaintiffs allegethat the Defendants withheld money from employee paychecks forthese benefit programs, but did not use the funds for the properpurpose. The Plaintiffs further allege that BHCC withheld moneyfrom employee paychecks for union dues but did not give thatmoney to the union as promised. Finally, they allege that ChaimStern is a fiduciary for the employee benefit plans and breachedhis fiduciary duty, including by using the aforementioned payrolldeductions to pay other unrelated premiums and companyobligations.

The Plaintiffs have moved for class certification. They proposetwo subclasses:

a. All employees of Bridgeport Health Care Center from Jan.1, 2015 to the present, who are represented by Local 1522, whoreceive health insurance coverage from BHCC pursuant to Article29 of the parties' collective bargaining agreement, lifeinsurance or disability insurance, and/or have payments deductedfor Bridgeport Federal Credit Union, and have union dues deductedfrom their paychecks.

b. All employees of BHCC from Jan. 1, 2015 to the present,who are represented by Local 1522 and are participants in theBHCC pursuant to Article 33 of the parties' collective bargainingagreement.

Both proposed subclasses are limited to employees who arerepresented by the Local 1522 bargaining unit. The Motion forCertification is not limited to any particular claims raised bythe Plaintiffs, and the text of the Plaintiffs' Memorandumreflects their intent to certify the class as to the 13 claimsbrought by the putative representatives.

The Defendants did not respond to the Motion for ClassCertification.

On July 5, 2017, the Court issued an Order directing the partiesto inform the Court as to whether the benefits plans in questionwere specific to members of the Local 1522 bargaining unit, orwhether the plans covered employees who are not affiliated withLocal 1522. In response, on July 10, 2017, the parties filed aJoint Stipulation stating, among other things, that the healthplan, pension plan and other employee benefit plans in questiondo not cover only members of Local 1522. Two days later, theparties filed a Supplement to their Stipulation, emphasizingthat, while the benefits plans cover employees who are notaffiliated with Local 1522, the bargaining agreement betweenLocal 1522 and BHCC means that certain terms of the benefitsplans only apply to members of the Local 1522 bargaining unit.

During a discovery-related conference on Aug. 7, 2017, the Courtexpressed concerns with certifying a class of some, but not all,members of an ERISA plan, and gave the parties an opportunity tosubmit responses to those concerns. On Aug.14, 2017, thePlaintiffs submitted a Response, in which they renewed theirargument that, because different unions may negotiate differentterms for the employee benefits in question, the proposed classesof fewer than all plan members could be certified.

On Sept. 7, 2017, the Court issued yet another Order expressingits concerns with certifying a class of fewer than all planmembers for ERISA claims. It ordered the parties to produce theterms of the benefits plans themselves, which had not previouslybeen provided to the court. It also invited briefing from theparties related to the Court's concerns about certifying therequested classes. The parties jointly filed the terms of thebenefits plans in question on Sept. 14, 2017. In addition, thePlaintiffs filed a Response to that Order on Sept. 29, 2017,which Response contained legal argument as to the Court's statedconcerns respecting class certification. In keeping with theirpattern of silence as to the Motion to Certify, the Defendantsdid not take the opportunity to respond to the Court's concerns.

Judge Hall finds that the Third Amended Complaint and the Motionfor Certification contain a wide range of legal claims andrequest a wide range of relief. One or more of the claims andone or more of the types of relief requested may be appropriatefor certification, and he is cognizant that district courtsgenerally enjoy broad discretion to "alter or modify" proposedclasses. However, he is neither qualified nor inclined to divinefrom the sprawling Third Amended Complaint which of the 13 countsalleged by the putative class ought to be litigated as a classaction and what type of relief should be sought. For example, aclass comprised solely of Local 1522 members may be appropriateas to the breach of contract claims based on the collectivebargaining agreement, but whether it would be appropriatelycertified as a Rule 23(b)(2) class or a Rule 23(b)(3) class woulddepend on the type of relief sought, which is not clear from theThird Amended Complaint.

What is clear, however, the Judge finds, is that the pendingMotion -- which moves for certification as to all claims and allrelief -- must be denied, as the proposed subclasses cannot becertified under any of the Rule 23(b) types. Therefore, hedenied without prejudice the Plaintiffs' Motion for ClassCertification.

A full-text copy of the Court's March 21, 2018 Order is availableat https://is.gd/9oZ66r from Leagle.com.

Cambridge is privately held company that has been activelyengaged in data mining, data brokerage, and data analysis.Facebook Inc. is a publically-traded social media company withMark Zuckerberg as CEO.

Plaintiffs are Facebook users. They allege that the Defendantsengaged in data mining, data brokerage, and data analysis for thepurpose of influencing the 2016 electoral process, using thepersonal information of millions of Facebook users to influencethe 2016 United States presidential election. [BN]

The Plaintiff asserts that the Defendant intentionallymisrepresented and omitted any mention of lead in its packagingand labels, that the Defendant knew or should have reasonablyexpected that the presence of lead in its dog foods was somethingan average consumer would consider when picking out food fortheir dogs, and that a reasonable consumer would be misled by theadvertisements.

The In re Blue Buffalo Settlement

On June 16, 2016, the Defendant received judicial approval of anationwide class action settlement resolving false advertisingclaims brought against it. In connection with the settlement, itcovered any person who purchased any Blue Buffalo products fromMay 7, 2008, through the Preliminary Approval Date, December 18,2015 (Settlement Class Members).

Dismissal on the Basis of Res Judicata

The Plaintiff claims that the present lawsuit is not barred byres judicata as it focuses on the allegations that theDefendant's Contaminated Dog Foods contain high levels of leadand heavy metals, a topic not touched upon in the prior action.

The Ninth Circuit, in In re, Int'l Nutronics, Inc., set forthfactors for considering whether a prior action involved the sameclaim or cause of action, including: (1) whether rights orinterests established in the prior judgment would be destroyed orimpaired by prosecution of the second action; (2) whethersubstantially the same evidence is presented in the two actions;(3) whether the two suits involve infringement of the same right;and (4) whether the two suits arise out of the same transactionalnucleus of facts.

The Court notes that the rights and interests of the Blue Buffalosettlement would be destroyed if this action were allowed toproceed. The settlement agreement resolved the plaintiffs'common legal claims, provided the plaintiffs redress, as well asreleased the Defendant from any and all claims. Thus, if theCourt were to allow the Plaintiff, a member of the SettlementClass, to now sue the Defendant, despite the settlement's broadrelease language, the Court would be unraveling the settlementand in essence rendering all of its stipulations moot.

As to the second factor, the Court agrees with the Plaintiff thatthe evidence in this case would differ from In re Blue Buffalo.In this matter, the Plaintiff alleges that the Contaminated DogFoods contain a high amount of toxins, heavy metals, and lead. Inthe prior matter, the plaintiffs asserted that Defendant's dogfood products contained artificial ingredients and animal by-product when their advertising stated the opposite.

Thus, this factor weighs in favor of Plaintiff.

The third factor, infringement of the same primary right, weighsin favor of the Defendant. Under this theory, a cause of actionis (1) a primary right possessed by the plaintiff, (2) acorresponding primary duty devolving upon the defendant, and (3)a harm done by the defendant which consists in a breach of suchprimary right and duty.

Here, both matters involve parties who purchased the Defendant'sanimal food products believing in the Defendant's advertisedpromise that its food was healthy, nutritious, and good for dogs.Thus, both actions are grounded upon the same claim falseadvertising.

As to the final and most important factor, the Court concludesthat the allegations in both complaints clearly arise from thesame transactional nucleus of facts. Here, both lawsuits arepredicated on the allegedly false, deceptive, and misleadingmarketing of the Defendant's animal food products, and theircontent. Thus, as the Plaintiff could have conveniently broughthis claims for false advertising, breach of express warranty,breach of implied warranty, and violations of the unfaircompetition law in the In re Blue Buffalo action, both mattersarise from the same transactional nucleus of facts.

In sum, the Court finds that though the evidence in the twoactions may not be identical, the rest of the essential factorsweigh in favor of finding that In re Blue Buffalo and the presentmatter both involve the same claim and/or cause of action.

A full-text copy of the District Court's March 22, 2018 Order isavailable at https://tinyurl.com/y87on9xs from Leagle.com.

That, along with allegations that the noise is intermittent andmanifests at different mileages, meaning that the noise has thepotential to surprise, at least plausibly pleads a safety hazard,even if the danger is somewhat less than that caused by amalfunctioning sunroof that opens on a highway and causes ablizzard of papers. Barakezyan need not wait for a dangeroussituation to occur to vindicate his right to a vehicle free ofsubstantial safety hazards.

A full-text copy of the Ninth Circuit's March 22, 2018 Opinion isavailable at https://tinyurl.com/y7foym6o from Leagle.com.

BRUNELLO CUCINELLI: Fischler Says Website not Blind-accessible--------------------------------------------------------------Brian Fischler, Individually and on behalf of all other personssimilarly situated, Plaintiff, v. Brunello Cucinelli USA RetailLLC and Brunello Cucinelli, USA, Inc., Defendant, Case No. 18-cv-01846, (E.D. N.Y., March 27, 2018), seeks preliminary andpermanent injunction, compensatory, statutory and punitivedamages and fines, prejudgment and post-judgment interest, costsand expenses of this action together with reasonable attorneys'and expert fees and such other and further relief under theAmericans with Disabilities Act, New York State Human Rights Lawand New York City Human Rights Law.

Brunello Cucinelli owns and operates stores throughout the UnitedStates, locations at 683 Madison Avenue, New York, New York, 379Bleecker Street, New York, New York and 136 Greene Street, NewYork, New York. They sell, at these stores, menswear, women'swear and accessories. It also provides a website,www.shop.brunellocucinelli.com which allows all consumers toaccess the facilities and services that it offers about itsretail stores. Fischler browsed and intended to make avail oftheir services. However, the Plaintiff is legally blind andclaims that Defendant's website cannot be accessed by thevisually-impaired. [BN]

CAPELLA UNIVERSITY: Two Former Students File Class Action---------------------------------------------------------Josh Verges, writing for Pioneer Press, reports that two formerstudents say Minneapolis-based Capella University lied about howmuch time and money it would take to complete an advanced degree.

Kansas resident Carolyn Wright and Debbra Kennedy of Tennesseefiled a class-action lawsuit on April 20 in U.S. District Courtin Minnesota.

Ms. Wright, who began pursuing a doctor of nursing practice inspring 2014, said she was told it would take two years and costabout $35,000. But Capella's website later said the programtakes 30 months, the complaint alleges, and that figure was thenrevised to 39 months.

Ms. Wright said she earned top grades and paid $53,000 before theonline school assigned her a new instructor who said she'd "haveto start all over" on her project. She tried to fight it butfinally left for another school.

Ms. Kennedy started school in February 2014 in a doctorate ofeducation capstone program advertised to take three years. Thecomplaint alleges Capella later said the program actually takes45 months but that fewer than 10 students managed to finish inthat time.

Ms. Kennedy earned high grades but made little progress in herdissertation. With debt piling up after more than $100,000 intuition payments, she dropped out of the program, one-fifth ofthe way toward her degree.

THE SCHOOL RESPONDSCapella responded to the complaint with a written statement:

"We are proud of our programs and dedicated to our learners. Thissuit is without merit," spokesman Mike Buttry said.

'ENDLESS ROUTINE OF HURDLES'The complaint says the students suffered from "decreasingresources, faculty turnover, disorganization and a lack ofoversight . . . Capella created an endless routine of hurdles andbenefitted from additional tuition payments."

And because the students took classes online, they couldn't seethat other students were having the same problems.

Central Carillon Beach Condominium is condominium with some 140residential units and various common elements. It is operatedand maintained by petitioner/appellant Central Carillon BeachCondominium Association. Similarly, 2201 Collins AvenueCondominium has some 180 residential units and various commonelements, all operated and maintained by petitioner/appellant2201 Collins Avenue Condominium Association.

For tax year 2015, each of the Associations filed, with theapproval of its board of directors, a single joint petition withthe Miami-Dade County Value Adjustment Board ("VAB") challengingthe Miami-Dade County, Florida ("Appraiser")'s proposedassessments for all of the units within the applicablecondominium building. Such a joint petition by an association onbehalf of the unit owners is expressly authorized by a provisionwithin the ad valorem tax statutes, though it is subject to (1) adetermination by the property appraiser that the units aresubstantially similar with respect to location, proximity toamenities, number of rooms, living area, and condition; and (2)notice by the association to each unit owner of a 20-day right toopt out of inclusion in the joint petition. These conditionswere satisfied in the present case, and the joint petitions wereheard administratively and ruled upon by the VAB.

Each Association obtained, for its respective unit owners,substantial reductions in assessed value in the VAB decision --approximately 20% in the case of Central Carillon, andapproximately 40% in the case of 2201 Collins Avenue. As furtherpermitted by the ad valorem statutes, the Appraiser appealedthose VAB determinations to the circuit court in separatelawsuits for each condominium. Each lawsuit, however, named eachof the individual unit owners as a defendant; it did not sue theapplicable Association "on behalf of" all of the unit owners.

In response, each Association moved to dismiss the lawsuit and tostrike the unit owners as the Defendants. Each Associationsought joint representation of all unit owners in itscondominium, as a Defendants' class action (joint, representativedefense, versus the joint, representative petition protesting theassessments, as had been the case before the VAB). The Appraiseropposed the motions to dismiss and moved to default all of thecondominium unit owners for failing to file an individualresponsive pleading.

These motions were further briefed by the counsel and then heardon the same day by the trial court. The trial court enteredseparate, but (appropriately) nearly identical orders in eachcase, denying each Association's motion to dismiss and alsodenying its motion for certification of the unit owners as adefense class with the Association as the owners' classrepresentative. These appeals followed.

Judge Salter explains that allowing an Association to representthe interests of its hundred-plus unit owners in the Appraiser'sappeal from the VAB reductions seems eminently logical. If ajoint petition can be pursued before the VAB, a joint defenseshouldn't be allowed in the Appraiser's appeal from the VAB'sdeterminations because of "Parties to a tax suit" found in theplain language of section 194.181.

The Judge explains that subparagraph (2) of that statute statesthat the "taxpayer" will be the party defendant in an actionbrought by the county property appraiser to appeal a decision ofthe VAB.5 "Taxpayer" is defined in section 192.001(13) to meanthe person or other legal entity in whose name property isassessed, including an agent of a timeshare period titleholder.The individual condominium units at issue in the case, togetherwith each unit's undivided interest in the common elements, areassessed in the name of the individual owners -- not theirAssociation.

In addition, the Judge notes that the condominium law, section718.111(3), and in Rule 1.221, Florida Rules of Civil Procedure,only addresses ad valorem taxes in one phrase: protesting advalorem taxes on commonly used facilities and on units. TheAssociations protested the ad valorem taxes administratively onbehalf of all units, but the lawsuits brought by the Appraiseragainst the unit owners are not "protests" -- they are judicialreview proceedings in which the unit owners are the Defendants.The specific cases in which an association may defend on behalfof all unit owners are actions in eminent domain.

Finally, the Judge finds that the numerous cases cited by theAssociations approving collective or class representation ofcondominium unit owners by their condominium association do notinvolve, as the present cases do, a separate statute specifyingthat each individual unit owner must be a party defendant. TheCourt's holding in these cases regarding property tax appealsbrought by a county property tax appraiser against condominiumunit owners does not dilute or qualify the continued amenabilityof other types of lawsuits to the common representation of unitowners by their association as permitted by section 718.111(3)and Rule 1.221.

Although Judge Salter appreciates the Associations' argumentsthat judicial efficiency would be better served by allowing theAssociations to represent the 140 (Central Carillon) or 180 (2201Collins Avenue) unit owners as a defense class in the lawsuitsbrought by the Appraiser, those arguments must be presented tothe Legislature rather than the courts if they are to beeffectual. Accordingly, he affirmed the orders denying classcertification are affirmed. The order is not final untildisposition of timely filed motion for rehearing.

A full-text copy of the Court's March 21, 2018 Order is availableat https://is.gd/m81bsV from Leagle.com.

CERES, CA: Court Needs Support of Settlement in "Amador"--------------------------------------------------------The United States District Court for the Eastern District ofCalifornia issued an Order Requiring Supplemental Submission inSupport of Stipulation and Proposed Order for Approval ofSettlement Agreement and Dismissal with Prejudice in the casecaptioned JULIO AMADOR, et al., Plaintiffs, v. CITY OF CERES,Defendants, No. 1:17-cv-00552-DAD-MJS (E.D. Cal.).

Thirty-four plaintiffs bring this action against defendant Cityof Ceres with allegations that they were denied propercompensation in violation of the Fair Labor standards Act (FLSA).

Settlement of claims under the FLSA requires court approval. TheFLSA establishes federal minimum-wage, maximum-hour, and overtimeguarantees that cannot be modified by contract. Because anemployee cannot waive claims under the FLSA, they may not besettled without supervision of either the Secretary of Labor or adistrict court.

To determine whether the proposed FLSA settlement is fair,adequate, and reasonable, courts in this circuit have balancedfactors such as: the strength of the plaintiffs' case; the risk,expense, complexity, and likely duration of further litigation;the risk of maintaining class action status throughout the trial;the amount offered in settlement; the extent of discoverycompleted and the stage of the proceedings; the experience andviews of counsel; the presence of a governmental participant; andthe reaction of the class members to the proposed settlement.Here, the parties have submitted a stipulation and proposed orderfor court approval of a settlement along with the request todismiss the action with prejudice.

Accordingly, the parties are directed to supplement theirstipulation for approval and dismissal by way of declaration(s),briefing or both, addressing why the proposed settlement is afair and reasonable resolution of a bona fide dispute, includingwith respect to the attorneys' fees to be awarded.

A full-text copy of the District Court's March 22, 2018 Order isavailable at https://tinyurl.com/y8z39gpk from Leagle.com.

The Plaintiffs allege, and the Defendants do not dispute, thatafter a rash of food-borne illness outbreaks in late 2014 and2015, some of which were linked to Chipotle, the value of theCompany's stock steeply declined. But while others attributethese losses to the adverse publicity surrounding the outbreaks,the Plaintiffs instead claim that they are due, in part or inwhole, to the Company's failure to disclose certain granulardetails and attendant risks of its produce-processing and food-safety procedures.

Before the Class Period, Chipotle received its produce from acentral commissary where it was processed, prepared and tested atleast twice for pathogens before being delivered. After Chipotlewas involved in a number of food-borne illness outbreaks, theCompany disclosed that it had begun high-resolution testing ofproduce as part of its remediation plan. High-resolution testingis a form of end product testing that uses a larger number ofsamples based on the timing of manufacturing or the lot size, andit can only take place at commissaries or food factories.

Food-Borne Illness Outbreaks

In total, these outbreaks in the operative complaint include (i)five Salmonella outbreaks; (ii) five E. Coli outbreaks; and (iii)three Norovirus outbreaks. All of the outbreaks and the degree,if any, to which they were connected by public health officialsto Chipotle are discussed individually in the remainder of thissection.

The December 2014 Multistate Salmonella Outbreak

The CDC found a link to four Chipotle customers, with at leastone coming from Wisconsin and the others coming from at least oneor more of the following states: Massachusetts, New Jersey, Ohio,Pennsylvania, South Carolina, Tennessee, Texas, Virginia, andWashington.

The February 2015 Multistate Salmonella Outbreak

The CDC found a link to eight Chipotle customers: four from acombination of New York, Wisconsin and Ohio, two from Texas, andtwo from Massachusetts.

The March 2015 Multistate E. Coli Outbreak

The CDC found a link to five or six Chipotle customers from acombination of California, Connecticut and Nevada.

Chipotle's Remedial Measures and the Market's Response

In relation to the October 2015 multistate E. coli outbreak,Chipotle issued a press release on November 3, 2015, stating thatthe Company was undertaking immediate steps to assistinvestigators, as well as retaining two preeminent food safetyconsulting firms to help the Company assess and improve upon itsfood-safety standards. On December 4, 2015, Chipotle issuedanother press release detailing the recommendations the Companyhad received from its food-safety consultants, including high-resolution testing of all fresh produce before it is shipped torestaurants, and enhanced internal training to ensure that allemployees thoroughly understand the Company's high standards forfood safety and food handling. Also on December 4, 2015, Chipotleissued a Form 8-K detailing the "adverse impact" of the October2015 multistate E. coli outbreak on the Company's financial andoperating results in the fourth quarter of 2015.

The Alleged Material Misrepresentations or Omissions

The Commissary Switch Omissions

The first statement that the Plaintiffs claim is false andmisleading, contained in Chipotle's 2014 Form 10-K, reads asfollows: "Our food is prepared from scratch, with the majorityprepared in our restaurants while some is prepared with the samefresh ingredients in larger batches in commissaries." The 2014Form 10-K also states, "We may be at a higher risk for food-borneillness outbreaks than some competitors due to our use of freshproduce and meats rather than frozen, and our reliance onemployees cooking with traditional methods rather thanautomation." The Plaintiffs also allege that the followingstatement was materially false and misleading: "There have beenno material changes in our risk factors since our annual reporton Form 10-K for the year ended December 31, 2014."

The Quality Assurance Omissions

Second, the Plaintiffs allege that the following statement,contained in Chipotle's 2014 Form 10-K, under the heading QualityAssurance and Food Safety is materially false or misleadingthe Plaintiffs also contend the Defendants had a duty to disclosethat Chipotle's late-2014 transition away from commissary producepreparation greatly increased the risk of food-borne illnessbeing contracted from its produce. In addition, the Plaintiffstether this theory to the alleged misstatements in the Company'sForms 10-Q.

The Traceability Omissions

Third, the Plaintiffs claim that a statement contained inChipotle's 2014 Form 10-K regarding the Company's use of avariety of produce types and produce suppliers, including localor organic produce" and farmers markets, was materially false ormisleading.The Plaintiffs claim that the following statements in Chipotle'sNovember 3 and 10, 2015 press releases, respectively, werematerially false and misleading: no cause for the October 2015multistate E. coli outbreak] has yet been identified byinvestigating health officials and no cause has been establishedbetween this issue, the October 2015 multistate E. coli outbreakand any ingredient.

The Guidance Misstatements and Omissions

Fourth, the Plaintiffs claim that the following statements,contained in both Chipotle press releases announcing financialresults for the first and second fiscal quarters of 2015 andChipotle's Forms 8-K filed April 21, 2015, and July 21, 2015,were materially false and misleading.

The Plaintiffs allege that statements contained in both aChipotle press release announcing the Company's financial resultsfor the third fiscal quarter in 2015 and the Company's October20, 2015 Form 8-K, were materially false and misleading. Thosestatements included an estimated sales performance for 2015identical to those in the Forms 8-K, as well as an expectationfor 2016 of low-single digit comparable restaurant salesincreases.

The Item 303 and Item 305 Omissions

Fifth, the Plaintiffs claim Chipotle's 2014 Form 10-K failed todisclose sufficiently a discussion of the most significantfactors that make the securities speculative or risky, and thatthe 10-Q Forms failed to provide any material changes from riskfactors as previously disclosed' in Chipotle's 2014 Form 10-K.

The November 2015 Press Release Misstatement

The Plaintiffs contend that a November 10, 2015 Chipotle pressrelease was materially false and misleading. Plaintiffs contendthat these statements were materially false and misleading whenmade because they misrepresented that investigations into theoutbreak remained open and ongoing, that there remained anongoing public health risk and/or threat from this outbreak andthe statements omitted that Chipotle lacked a reasonable basis tomake representations on behalf of public health officials.Defendants' Motion to Dismiss Is Granted in Full

Securities Fraud Under Section 10(b), Rule 10b-5, and Section20(a)

To prevail on a Section 10(b) or a Rule 10b-5 claim, a plaintiffmust prove [i] a material misrepresentation or omission by thedefendant; [ii] scienter; [iii] a connection between themisrepresentation or omission and the purchase or sale of asecurity; [iv] reliance upon the misrepresentation or omission;[v] economic loss; and [vi] loss causation.

Section 20(a) of the Exchange Act provides that every person who,directly or indirectly, controls any person liable under theExchange Act and its implementing regulations] shall also beliable jointly and severally with and to the same extent as suchcontrolled person to any person to whom such controlled person isliable. A claim under Section 20(a) is thus dependent on thevalidity of an underlying securities violation. Indeed, toestablish control-person liability, a plaintiff must show [i] aprimary violation by the controlled person; [ii] control of theprimary violator by the defendant"; and [iii] that thecontrolling person was, in some meaningful sense, a culpableparticipant in the controlled person's fraud.

Plaintiffs' Section 10(b) Claims

Commissary Switch Omissions

The Plaintiffs argue that the SAC plainly alleges that Chipotleexecutives had contemporaneous knowledge of customer sicknesses,the paragraphs of the SAC to which they cite do not sufficientlyallege, with the precision required by Rule 9 and the PSLRA, thatany Chipotle employee was aware of, or recklessly disregarded,the illnesses associated with the newly-alleged outbreaks.Instead, they merely discuss procedures by which customers andofficials could have reported illnesses.

Even here, the SAC does not allege that any customers orregulators actually utilized those reporting procedures for thenewly-alleged outbreaks. The Defendants thus cannot be said tohave recklessly disregarded information to which they never hadaccess. In sum, the Court's previous holding still stands: TheCompany's decision to transition to in-store produce productiondid not change Chipotle's disclosed risk factors in a materialway. The Plaintiffs have not alleged sufficient facts to indicatethat Defendants should have believed otherwise.

Nor do the Plaintiffs' perfunctory allegations that theIndividual Defendants had the motive and opportunity to commitfraud suffice to allege scienter. The parties do not dispute thatthe Individual Defendants, as corporate executives, had theopportunity to commit fraud.

The Plaintiffs' claims premised on these are therefore dismissed.

Quality Assurance Omissions

The alleged misstatements at issue are either not demonstrablyfalse or inactionable puffery. Portions of the allegedmisstatement provide that Chipotle's quality assurance departmentestablishes and monitors the Company's quality and food safetyprograms, and that the Company's "training and risk managementdepartments develop and implement operating standards for foodquality, preparation, cleanliness and safety."

But these statements are not demonstrably false: The SAC does notallege that Chipotle failed to undertake such endeavors, butmerely that Chipotle failed to do so adequately or that Chipotlefailed to live up to its own food safety standards or thatChipotle's food-safety auditing system was inherently deficient.These allegations do not conflict with the Defendants' statementsregarding the food-safety programs and procedures that Chipotlehad in place, but merely quibble with Chipotle's execution ofthose programs and procedures.

The Plaintiffs' claims premised on Defendants' statementsregarding its quality-assurance procedures are dismissed.

Traceability Omissions

The Plaintiffs also claim that press release statements fromNovember 2015, issued shortly after the October 2015 E. colioutbreak, and stating that a cause for the outbreak had not yetbeen identified, were misleading for failing to disclose thatChipotle's inability to trace ingredients was the reason that (i)a cause had not and would not be identified and (ii) anyinvestigation into the issue would be delayed. But the citedstatements did not give rise to such a duty to disclose for muchthe same reason that the Form 10-K did not trigger such a duty:the Defendants did not purport to speak and no reasonableinvestor would have understood them to speak to the intricaciesof investigating an outbreak, but only to the simple fact(undisputed by the Plaintiffs) that no cause for the outbreak hadyet been discovered.

The Plaintiffs' claims premised on Chipotle's failure to discloseits inability to trace ingredients back to their source aretherefore dismissed.

Item 303 and Item 305 Omissions

These claims fail for substantially the same reasons as theclaims above. Specifically, the 2014 Form 10-K, and byincorporation the April 2015 Form 10-Q and July 2015 Form 10-Q,provided robust risk disclosures that satisfied the requisites ofItems 303 and 503. As the Court previously held, Chipotleprovided disclosures regarding its risks that were company-specific and related to the direct risks it uniquely faced; therecan be no argument that these were boilerplate statementsinsufficient to satisfy the Company's obligations under Items 303or 503.

And as to the Item 503 claim involving the October 2015 Form 10-Q, it bears noting that of the eight outbreaks the Plaintiffsallege the Defendants were under a duty to disclose, four werenever linked to a certain ingredient or supplier. The Company'sdisclosure that its restaurants have been associated withcustomer illness on a small number of occasions, as of October2015, thus satisfied its duty of disclosure.

The Plaintiffs' claims based on Items 303 and 503 are thereforedismissed.

The Guidance Misstatements and Omissions

And because these claims fail for lack of scienter, they are alsoprotected by the PSLRA's safe harbor for forward-lookingstatements. Where an alleged misstatement is contained in aforward-looking statement, the safe harbor shields defendantsfrom liability in three circumstances: A defendant is not liableif the forward-looking statement is identified and accompanied bymeaningful cautionary language or is immaterial or the plaintifffails to prove that it was made with actual knowledge that it wasfalse or misleading. Forward-looking statements include astatement containing a projection of income earnings per share,or other financial items' and 'a statement of future economicperformance, including any such statement contained in adiscussion of analysis of financial condition by the management.

The safe harbor is limited, however, to forward-lookingstatements; it does not apply to material omissions ormisstatements of historical fact.

The Plaintiffs' allegations regarding statements made by theDefendants and the CDC after November 10, 2015, do not establishthat Defendants knew or recklessly disregarded that anystatements made on that date may have been false. Indeed, severalof the CDC statements on which the Plaintiffs base this argumentwere only published internally, and at least one of them dealtwith the investigation of an entirely different outbreak. Even ifthese documents indicate that the investigation was ongoing as ofNovember 10, 2015, the SAC does not allege that the Defendantswere aware of them.

The Plaintiffs' claims based on Chipotle's November 10, 2015press release are therefore dismissed. Further, because all ofthe Plaintiffs' claims inadequately plead either a materialmisstatement or omission, or facts giving rise to a stronginference of scienter, the Court need not reach the issue of losscausation.

Section 20(a) Claims

The Plaintiffs' claims under Section 10 and Rule 10b-5 fail. ThePlaintiffs' Sec 20(a) claim therefore fails, as a control personmay not be liable without a primary securities violation.

The Court has reviewed the many new allegations added byPlaintiffs to the SAC, and concludes that they do not remedy thefundamental problems outlined in Chipotle I. While numerous, thenew allegations fail because, broadly speaking, they are (i)conclusory assertions, including assertions to materials theCourt may not properly consider, or (ii) allegations that add newfacts but exhibit the same pleading deficiencies. At its core,the SAC faults the Defendants for failing to disclose duties theydid not assume; for failing to be prescient; and for presentingaccurate, but general, discussions of material risks rather thanattempting the impossible task of outlining the myriad possibleoutcomes. The food-borne illness outbreaks were unfortunate, butwhatever else they might reveal about Chipotle, they do not onthis record reveal securities fraud.

Given this, the Court granted in part the Defendants' motion tostrike and granted with prejudice the Defendants' motion todismiss. Pursuant to the PSLRA, the Court finds that the partiesand counsel in this matter have complied with Federal Rule ofCivil Procedure 11(b): Neither the claims nor defenses wereharassing or frivolous; all factual contentions had evidentiarysupport or were reasonably based on belief or a lack ofinformation; and the Defendants did not affirmatively allegeimproper conduct nor move for sanctions.

A full-text copy of the District Court's March 22, 2018 Opinionand Order is available at https://tinyurl.com/ybvh3v24 fromLeagle.com.

This matter comes before the Court on the Magistrate Judge'sReport and Recommendation, which recommended that the Court grantin part and deny in part Plaintiff's Motion for Sanctions.

This is a wage and hour lawsuit brought on behalf of a group ofbartenders and exotic dancers against a Columbus-area adultentertainment club, Defendant Cleveland Ave Restaurant, Inc.,known as Sirens, and individuals associated with Sirens,including Defendants F. Sharrak, M. Sharrak, Sullivan, andAlkammo (Sirens Defendants).

The Plaintiff alleges that the Defendants have engaged inunlawful employment practices, including charging the Plaintifffees for exotic dances for customers, charging the Plaintiff 10%on customer tips left on credit cards, and requiring thePlaintiff to pay tips to non-tipped employees. The Plaintiffalleges that the Defendants' behavior violates the Fair LaborStandards Act (FLSA), Article II Section 34(a) of the OhioConstitution, and Section 4113.15 of the Ohio Revised Code.

The Plaintiff filed the Motion for Sanctions, seeking to impose avariety of sanctions on the Defendants for their destruction ofthe Lease Agreements and Bubblesheets and Penthouse Sheets. ThePlaintiff contends the destruction of these documents amounts toboth spoliation and a disregard of the Court's order to producedocuments related to exotic dancers.

The Court will grant the seventh sanction requested in thePlaintiff's Motion and schedule a hearing for the Defendants andtheir counsel to show cause as to why they are not in contempt ofthis Court's June 28, 2016 Order. The parties are thereforeordered to appear before the Honorable Algenon L. Marbley and theDefendant must show cause as to (1) why they should not befurther sanctioned; and (2) why this Court should not proceedwith a criminal contempt prosecution, pursuant to its authorityunder 18 U.S.C. Section 401, for spoliation of evidence and theDefendants' failure to follow the Court's June 27, 2016 Order.

After the show cause hearing takes place, the Court willdetermine whether any further sanctions are warranted, dependingon whether the Defendants' actions were due to willfulness, badfaith, or any fault of their own. Consistent with the MagistrateJudge's Order awarding fees and costs, the Sirens Defendants willbear the costs related to the hearing.

Accordingly, the Court adopts the recommendation in so far as itawards attorney's fees and costs to Plaintiff. The Court rejectsthe recommendation in so far as it conclusively limits sanctionsto only fees and costs.

The Plaintiff's Motion for Sanction is therefore granted.

A full-text copy of the District Court's March 22, 2018 Opinionand Order is available at https://tinyurl.com/y9z4n4tc fromLeagle.com.

The Plaintiffs bring this action pursuant to Rule 23 of the Rulesof the Court of Chancery, on behalf of themselves and all personswho owned shares of NCI common stock at any point in time fromJuly 3, 2017 through August 15, 2017, excluding Defendants andtheir affiliates.

The Plaintiffs were owners of NCI common stock at all relevanttimes.

The Defendant Narang founded NCI's predecessor and wholly ownedsubsidiary, NCI Information Systems, Inc., in 1989. Narang servedas the Chairman of the Board of NCI, and he also served as NCI'sCEO from the Company's beginning until October 1, 2015.

The Individual Defendants are members of the board of NCI.

The Defendant H.I.G. is a global private equity investment firmwith $24 billion of equity capital under management. H.I.G. is aDelaware limited liability company and is headquartered in Miami,FL, with its principal executive offices at 1450 Brickell Avenue,Miami, FL.

The Defendant Parent is a Delaware limited liability company withits headquarter is located at 1001 Pennsylvania Avenue, NW,Washington, DC.

The Defendant Merger Sub is a Delaware corporation and a whollyowned subsidiary of Parent. [BN]

COMMON GROUND: Insurers' Class Action Over CSRs Can Proceed-----------------------------------------------------------Marlene Satter, writing for Benefits Pro, reports that score onefor the insurers: they can now present a united front in theirsuit of the federal government over the termination of cost-sharing reduction payments.

Modern Healthcare reports that Judge Margaret Sweeney of the U.S.Court of Federal Claims has granted Wisconsin-based Common GroundHealthcare Cooperative's request for class-action status.

The federal government had challenged the request, arguing thatinsurers shouldn't get class-action status because their allegeddamages would vary; some insurers forestalled potential damage bythe cutoff of CSRs by boosting premiums to compensate for thelost subsidies. That in turn made the government have to forkover higher premium tax credits.

But the judge wasn't having it, pointing out that no statute barsinsurers from raising premiums to offset the loss of CSRs. Shealso highlighted another case, the report says, in which thecourt concluded that the government ending up with higher premiumtax credits to consumers doesn't reduce or eliminate itsliability for making CSR payments.

Other insurers suing the government over CSRs include SouthDakota-based Sanford Health Plan, Montana Health Co-op and MaineCommunity Health Options.

While the government will probably appeal the class actionstatus, since it could be on the hook for billions in CSRs if itloses in court, the move is a win for insurers, at least for now.After the Trump administration ended CSRs in October of 2017,many of them had tacked on premium increases to their 2018 silverplan premiums on the Affordable Care Act exchanges to compensatefor those lost CSRs.

That action resulted in enough of an increase in the premium taxcredits available to consumers with incomes up to 400 percent ofthe federal poverty level so that most exchange plan membersnever got stuck with the 2018 premium hikes. [GN]

The district court granted Credit One's motion to compelarbitration but certified for interlocutory appeal the questionwhether A.D. is bound by the cardholder agreement. The Courtgranted A.D.'s request for permission to appeal.

A.D., by and through her mother, Judith Serrano, brought thisputative class action under the Telephone Consumer ProtectionAct. She seeks compensation for telephone calls placed by CreditOne Bank, N.A. (Credit One) to her telephone number in an effortto collect a debt that she did not owe. After discovery, CreditOne moved to compel arbitration and to defeat A.D.'s motion forclass certification based on a cardholder agreement betweenCredit One and Ms. Serrano.

Credit One submits that A.D. is bound by the cardholder agreementas an Authorized User. The cardholder agreement provides amechanism for cardholders to designate other individuals asAuthorized Users of their accounts.

The district court held that because Ms. Serrano told A.D. to usethe credit card to pick up the smoothies, Ms. Serrano had madeher an authorized user of the account. The court seemingly reliedon the language from the cardholder agreement that if you allowsomeone to use your Account, that person will be an AuthorizedUser.

The Seventh Circuit finds that neither the contract language readas a whole nor the governing law supports these arguments. Evenif it was to accept, for the sake of argument, that the contractcreates multiple categories of Authorized Users (or authorizedusers, as the arbitration clause reads), and even if someone canbecome one kind of authorized user just by using the credit card,Credit One's position cannot surmount two major stumbling blocks.

First, it is a fundamental principle of arbitration law that aparty cannot be required to submit to arbitration any disputewhich he has not agreed so to submit. A.D. simply did notconsent to arbitrate with Credit One. More fundamentally, A.D.did not have legal capacity to enter into a contractualrelationship with Credit One. A.D. was a minor at the time ofthe smoothie transaction. Under applicable state law, minorslack capacity to enter into contracts and can disaffirm theirobligations under contracts formed before they reach the age ofeighteen. Moreover, A.D. certainly engaged in an act ofdisaffirmation by filing this lawsuit and asserting her status asa minor.

Assuming, for the sake of argument, that A.D. formed any kind ofcontractual relationship with Credit One before she reached theage of majority, she has disaffirmed any obligation under thatcontractual relationship that she might have had Credit One alsoargues that A.D. has waived any argument that she does notqualify as an Authorized User under the terms of the agreement orthat, as a minor, she has a right to disaffirm the contract.

Credit One only obliquely made such an argument at the districtcourt through the conclusory statement in its motion to compelarbitration that because Ms. Serrano permitted Plaintiff A.D. touse the card on Plaintiff's behalf. Plaintiff became an'Authorized User.' Credit One cannot rely on waiver when it wasCredit One's burden to show that A.D. had become an AuthorizedUser under the cardholder agreement and was therefore subject tothe arbitration clause.

A full-text copy of the Seventh Circuit's March 22, 2018 Opinionis available at https://tinyurl.com/y8xdpd26 from Leagle.com.

CR ENGLAND: UCSPA Claims Subject to Opt-Out Notice Requirement--------------------------------------------------------------The United States District Court for the District of Utah,Central Division, denied in part Defendants' Motion to Alter orAmend the Class Certification Order in the case captioned CHARLESROBERTS, an individual, and KENNETH MCKAY, an individual, onbehalf of themselves and others similarly situated, Plaintiffs,v. C.R. ENGLAND, INC., a Utah corporation; OPPORTUNITY LEASING,INC., a Utah corporation; and HORIZON TRUCK SALES AND LEASING,LLC, a Utah Limited Liability Corporation, Defendants, Case No.2:12-cv-00302-RJS-BCW (D. Utah).

Under the UCSPA, class action claims are subject to an opt-innotice requirement. The Defendants argue this requirementapplies not only to the Plaintiffs' UCSPA claims, but to all ofthe Plaintiffs' claims under Utah statutory and common law.

Shady Grove

A Supreme Court decision, Shady Grove Orthopedic Associates, P.A.v. Allstate Insurance Company, provides the controlling authorityfor determining whether Federal Rule 23 or the UCSPA opt-inrequirement applies in this case. Shady Grove reiterates thefamiliar two-step framework that applies when a federal rule anda state law both seemingly govern. First, courts determinewhether the federal rule directly conflicts with the state law. Adirect conflict between a federal rule and state law exists ifthe federal rule answers the question in dispute or putdifferently, if it is sufficiently broad to control the issuebefore the Court.

If there is a direct conflict, the federal rule applies as longas it represents a valid exercise of Congress's rulemakingauthority under the Rules Enabling Act (REA). A federal rule runsafoul of the REA if it abridges, enlarges, or modifies anysubstantive right.

Application of Shady Grove'S Two-Step Analysis

Two other distinctions weigh in the opposite direction. First,the New York statute was one of general application found in thestate procedural code, whereas the opt-in provision here is foundwithin the text of the USCPA itself. Second, the New York statuteexpressly and unambiguously applied to claims brought underfederal law or the laws of other states. Justice Stevens thusfound it hard to see how the law could be understood as a rulethat, though procedural in form, serves the function of definingNew York's rights or remedies. Here, the opt-in provision on itsface may apply only to class actions brought under the UCSPA.

To the second point, the fact that the UCSPA opt-in provisiondoes not expressly and unambiguously" apply to claims underfederal law and the laws of other states is not determinative. Asan initial matter, it is not clear whether the opt-in provisionapplies only to claims under the UCSPA or extends more broadly toall related claims regardless of their source of law. If itapplies broadly, that would support the conclusion that it doesnot function to define Utah's rights or remedies, for the reasonsexplained by Justice Stevens in Shady Grove.

However, even if the UCSPA is construed more narrowly to imposeopt-in notice only for related claims under state law, that stillfalls well short of leaving little doubt that the requirementserves the function of defining Utah's substantive rights orremedies.

Under Shady Grove, the Plaintiffs' UCSPA claims are subject to anopt-out notice requirement under Rule 23. Therefore, theDefendants' Motion to Alter or Amend the Class CertificationOrder is denied in part as to the notice required for Plaintiffs'UCSPA claims.

A full-text copy of the District Court's March 22, 2018Memorandum Decision and Order is available athttps://tinyurl.com/ybsqahjk from Leagle.com.

CRYPTSY: Consumers' Class Action Won't Be Settled in Arbitration----------------------------------------------------------------P.J. D'Annunzio, writing for Daily Business Review, reports thata class action filed by consumers who were ripped off by theowner of a cryptocurrency company will not be settled inarbitration, a federal appeals court has ruled.

The U.S. Court of Appeals for the Eleventh Circuit on April 23upheld a West Palm Beach federal judge's ruling that the case isnot subject to arbitration.

The class members are customers of Cryptsy, a company thatconverted customers' bitcoin into real cash. According toEleventh Circuit's per curiam opinion, founder Paul Vernon overthe course of three years converted $8 million of bitcoin intocash, which was deposited into his bank account through a companycalled Coinbase, the defendant in the class action.

Mr. Vernon fled the country after the money was in his hands.

Lead plaintiff Brandon Leidel brought claims against Coinbase foraiding and abetting Cryptsy's breaches of its fiduciary duties,aiding and abetting Mr. Vernon's theft of his customer's money,negligence and unjust enrichment from collecting fees forconverting bitcoin that belonged to Cryptsy's customers butinstead ended up in Vernon's personal account.

Coinbase argued Cryptsy's receiver is bound by the arbitrationclause in the user agreements that Cryptsy, through Mr. Vernon,entered into in 2013 and 2014 "because the receiver merelystepped into the shoes of Cryptsy with respect to thoseagreements," the opinion said.

U.S. District Judge Kenneth Marra ruled the arbitration clause inthe user agreements didn't apply because Mr. Leidel did notassert a right to benefits under those agreements as evidenced bythe fact that Mr. Leidel had not brought a claim for breach ofcontract, just tort claims.

Judge Marra subsequently denied Coinbase's motion to compelarbitration, and the defendant appealed, arguing it was entitledto arbitration under the doctrine of equitable estoppel.

However, the court reasoned, "Leidel does not seek to enforce theUser Agreements entered into by Vernon and Cryptsy. BecauseDefendant has failed to establish both that Leidel is relying ona contract to assert his claims and that the scope of thearbitration clause in that contract covers the dispute, Leidel isnot equitably estopped from avoiding the arbitration clause indefendant's user agreements."

The case was decided by Circuit Judges William Pryor, JulieCarnes and R. Lanier Anderson.

The class is represented by Silver Miller in Coral Springs andthe Wites Law Firm in Lighthouse Point.

"I have preached that accountability, transparency andverification are needed in the crypto exchange space," SilverMiller co-founder David Silver said in a statement on April 23."This ruling brings the plaintiffs one step closer to finding outjust what type of know your customer protocols and anti-moneylaundering protections Coinbase employed and whether Coinbasecomplied with state and federal statutes in that regard.Coinbase has delayed and tried to keep discovery hidden from thepublic long enough. That stops now."

Marc Wites of the Wites Law Firm said the appeal was correctlydecided, and he was eager to proceed.

The plaintiffs' "only contractual relationship was with Cryptsy.They did not sue Coinbase for breach of contract and thus werenot bound by the arbitration agreement," Mr. Wites said.

Andrew Kemp-Gerstel -- akg@lgplaw.com -- of Liebler Gonzalez &Portuondo in Miami represents the defendant and did not respondto a request for comment by deadline. [GN]

The Plaintiffs are currently or were previously employed by theDefendant as Security Advisors.

Defenders is an Indiana corporation with corporate officeslocated at 3750 Priority Way South Drive, Indianapolis, Indiana,and upon information and belief, over 1,000 other offices locatedthroughout the United States, including in Delaware. TheDefendant is a provider of burglar alarm installation services.[BN]

The Plaintiffs alleges that the Defendants are currentlyattempting to manipulate the structure of a merger in order todeny stockholders their appraisal rights. This case involves astraightforward corporate merger in which the target stockholderswill receive cash and end up with just 13% of the combinedentity.

City of North Miami Beach General Employees' Retirement Planholds and has held shares of common stock of DPSG at all timesrelevant herein.

Maitland Police Officers and Firefighters Retirement Trust holdsand has held shares of common stock of DPSG, at all-time relevantherein.

The Defendant DPSG, a Delaware corporation, is a leadingintegrated brand owner, manufacturer and distributor of non-alcoholic beverages in the United States, Mexico and theCaribbean, and Canada with a diverse portfolio of flavored CSDsand NCBs, including ready-to-drink teas, juices, juice drinks,water and mixers. DPSG's common stock is listed on the New YorkStock Exchange under the symbol "DPS." DPSG's principal place ofbusiness is located at 5301 Legacy Drive, Plano, Texas 75024.

Maple, a Delaware corporation, is Keurig's parent. Keurig is aleading producer of specialty coffee and innovative single-servebrewing systems, with its Keurig brewers and single-serve hotbeverages in more than 20 million homes and offices throughoutNorth America.

The Individual Defendants are members of the board of directorsof DPSG. [BN]

EDGE THERAPEUTICS: Glancy Prongay Files Securities Class Action---------------------------------------------------------------Glancy Prongay & Murray LLP ("GPM") on April 23 disclosed that ithas filed a class action lawsuit in the United States DistrictCourt District of New Jersey, on behalf of persons and entitiesthat acquired Edge Therapeutics, Inc. ("Edge Therapeutics" or the"Company") (NASDAQ: EDGE) securities between December 29, 2017and March 27, 2018, inclusive (the "Class Period"). EdgeTherapeutics investors have until 60 days from April 23, 2018,the date of this notice to file a lead plaintiff motion.

To obtain information or actively participate in the classaction, please visit the Edge Therapeutics page on our website atwww.glancylaw.com/case/edge-therapeutics-inc.

Investors that suffered losses on their Edge Therapeuticsinvestments are encouraged to contact Lesley Portnoy of GPM todiscuss their legal rights in this class action at 310-201-9150or by email to shareholders@glancylaw.com.

The complaint filed in this class action alleges that throughoutthe Class Period, Defendants made false and/or misleadingstatements, as well as failed to disclose material adverse factsabout the Company's business, operations, and prospects.Specifically, Defendants failed to disclose: (1) that theCompany's lead product candidate EG-1962 would likely fail afutility analysis in connection with the NEWTON 2 study; and, (2)that, as a result of the foregoing, the Company's financialstatements and Defendants' statements about Edge's business,operations, and prospects, were materially false and misleadingat all relevant times.

On March 28, 2018, Edge Therapeutics disclosed, "that a pre-specified interim analysis on data from the Day 90 visit of thefirst 210 subjects randomized and treated in the Phase 3 NEWTON 2study of EG-1962 demonstrated a low probability of achieving astatistically-significant difference compared to the standard ofcare in the study's primary endpoint, if the study is fullyenrolled." As a result, the Data Monitoring Committee"recommended that the study be stopped based on its conclusionthat the study has a low probability of meeting its primaryendpoint." Based on the DMC recommendation, Edge Therapeuticsstated that it has decided to discontinue the Phase 3 NEWTON 2study.

On this news, shares of Edge Therapeutics fell $14.28 per share,or nearly 92%, to close at $1.31 per share on March 28, 2018,thereby injuring investors.

If you acquired shares of Edge Therapeutics during the ClassPeriod you have 60 days from the date of this notice to file alead plaintiff motion to ask the Court to appoint you as leadplaintiff. To be a member of the Class you need not take anyaction at this time; you may retain counsel of your choice ortake no action and remain an absent member of the Class. If youwish to learn more about this action, or if you have anyquestions concerning this announcement or your rights orinterests with respect to these matters, please contact LesleyPortnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, LosAngeles California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit ourwebsite at www.glancylaw.com. If you inquire by email pleaseinclude your mailing address, telephone number and number ofshares purchased. [GN]

The Plaintiffs brought the class action on behalf of themselvesand all persons who had their commission-based accounts withEdward Jones moved into one of the Advisory Programs betweenMarch 30, 2013 and March 30, 2018.

The Plaintiffs had assets in a commission-based account withEdward Jones within the Class Period.

The Defendant Edward D. Jones & Co, L.P., is a Missouri LimitedPartnership headquartered in St. Louis, Missouri, is duallyregistered as a broker-dealer and as an investment advisor underfederal and state securities laws. Edward D. Jones providesbrokerage and related financial services to individuals and smallbusinesses and is the principal operating subsidiary of the JonesFinancial Companies, L.L.L.P.

The Defendants consist of multiple, interconnected entities whoworked in concert to orchestrate the reverse churning schemealleged herein to generate billions in revenue for themselves bycoercing Plaintiffs and the other members of the Class to movetheir commission-based accounts with Edward Jones to an AdvisoryProgram. [BN]

EXPERIAN INFORMATION: Judgment on Pleadings in "Devries" Denied---------------------------------------------------------------The United States District Court for the Northern District ofCalifornia denied Defendant's Motion on the Pleading in the casecaptioned SEAN GILBERT DEVRIES, Plaintiff, v. EXPERIANINFORMATION SOLUTIONS, INC., Defendant, Case No. 16-cv-02953-WHO(N.D. Cal.).

Experian moves for judgment on the pleadings, arguing that theinjunctive relief remedy provided by DeVries's state law claimsis pre-empted by the Fair Credit Reporting Act, 15 (FCRA) andthat the claims fail because its alleged conduct is expresslyauthorized by the FCRA and supporting regulations.

Experian argues that the conduct alleged against it is expresslyauthorized by the FCRA and supporting regulations. It reliesparticularly on Section 1022.123 of the Code of FederalRegulations, which requires that CRAs develop and implementreasonable requirements for what information consumers have toprovide as proof of identity for purposes of obtaining their freeannual credit disclosure.

When Experian was not able to verify DeVries' identity for thefree report, it requested that DeVries provide furtheridentifying documentation, such as an identification card,utility bill, and bank or insurance statement. All of thequestions asked by Experian, including the request for furtheridentifying documentation such as a utility bill or bank orinsurance statement, might be reasonable under Section1022.123(b). But the regulation does not create a safe harbor forthose activities.

The reasonability of Experian's conduct will depend on manyfactors, including the basis for treating paying consumersdifferently than those entitled to a free report if that is whatdiscovery shows. That cannot be decided on the pleadings.

EXTREME NETWORKS: Court Narrows Claims in Securities Suit---------------------------------------------------------In the case, In re EXTREME NETWORKS, INC. SECURITIES LITIGATION,Case No. 15-cv-04883-BLF (N. D. Cal.), Judge Beth Labson Freemanof the U.S. District Court for the Northern District ofCalifornia, San Jose Division, granted in part and denied in partthe Defendants' motion to dismiss the Amended Complaint.

On Sept. 26, 2016, Lead Plaintiff Arkansas Teacher RetirementSystem filed a Consolidated Class Action Complaint on behalf ofall investors who purchased the publicly traded common stock ofExtreme and/or exchange-traded options on such common stockbetween Sept. 12, 2013, and April 9, 2015. The ConsolidatedComplaint alleged two counts: (1) violation of Section 10(b) ofthe Exchange Act and Rule 10b-5 against all the Defendants; and(2) violation of Section 20(a) of the Exchange Act against theIndividual Defendants for liability as control persons ofExtreme.

The case is a putative class action for securities fraud broughtagainst Extreme and its officers Charles W. Berger, Kenneth B.Arola, and John T. Kurtzweil. They bring the action against theDefendants for alleged misrepresentations regarding the successof Extreme's post-acquisition integration with its formercompetitor, Enterasys Networks, Inc., as well as developments inExtreme's "key partnership" with Lenovo Group Ltd. TheDefendants' positive representations to investors about theresulting "synergies" from the Enterasys integration and benefitsof the Lenovo partnership -- including a commitment that costsavings from these arrangements would lead to double-digitrevenue growth and a 10% operating margin by June 2015 -- causedExtreme's stock price to rise. Meanwhile, Extreme's stock pricedropped when Extreme reported disappointing financial results atvarious points between February 2014 and the end of the ClassPeriod on April 9, 2015.

The Plaintiffs have filed an Amended Consolidated Class ActionComplaint alleging that the Defendants violated Section 10(b) ofthe Securities Exchange Act of 1934, and Rule 10b-5. They alsoassert that the Individual Defendants are liable for violationsof federal securities laws as "control persons" of Extreme,pursuant to Section 20(a) of the Exchange Act, 15 U.S.C. Section78t(a).

The Court previously dismissed the Plaintiffs' Section 10(b) andRule 10b-5 claim for failure to adequately plead falsity andscienter with respect to any of the challenged statements. TheDefendants now move to dismiss this claim in the AmendedComplaint, arguing that the pleading treads the same path as itspredecessor, and deserves a similar fate. As before, thePlaintiffs' allegations in the Amended Complaint fall into threecategories of statements by Defendants regarding: (1) theEnterasys integration; (2) the partnership with Lenovo; and (3)Extreme's "commitment" to 10% operating margins and revenuetargets.

Because the Plaintiffs have not adequately alleged that there wasno "plan" with respect to the Enterasys integration, the 2013statements are not adequately alleged to be false or misleadingunder the PSLRA. Rather, Judge Freeman finds that the CWscriticize what was perhaps an ill-conceived plan that upsetExtreme's customers. But a poorly received "plan," does notamount to securities fraud. Because the only two statements madeby Kurtzweil regarding the Enterasys integration fall into thiscategory, and the Plaintiffs fail to plead an actionablemisrepresentation or omission, the Plaintiffs have not allegedthat Kurtzweil is liable for the section 10(b) and Rule 10b-5claim.

The Judge next finds that none of the allegations in the AmendedComplaint disputes that Extreme trained Lenovo North Americanreps on Extreme products, that Extreme employees sat "side-by-side" with Lenovo people in North America and China, or thatExtreme had "airtime" with the legacy Lenovo salesforce. Thesechallenged statements could still be true even if there wereproblems with the Lenovo partnership, the arrangement addedlittle if any benefit to Extreme, and there was no "field levelactivity."

The Defendants argue that Berger and Arola used the word"commitment," which is not a word of certainty, even when viewedin context. Judge Freeman says the surrounding factualallegations do not raise an inference that the Defendants had an"obligation" to achieve these results or assured the market thatthese results were "certain." Rather, they expressed that theywere devoted to an effort to achieve these results within thespecified time frame. She does not disrupt its priordetermination that the "commitment" statements are inactionablepuffery.

For these reasons, Judge Freeman concludes that finds thatfalsity and scienter are adequately pled with respect to theallegations set forth in paragraphs 197, 213, 209, 227, 240, 235,254, 258, 279, and 291 as identified in Appendix A to the AmendedComplaint, and on that basis, she denied the motion to dismissthe section 10(b) and Rule 10b-5 claim.

Because Kurtzweil is not alleged to have made any of thesurviving statements, the Judge granted the motion to dismiss thesection 10(b) and Rule 10b-5 claim as to Kurtzweil only. Shedenied the motion to dismiss the section 20(a) claim against theIndividual Defendants.

She directed that the Defendants will answer the AmendedComplaint.

A full-text copy of the Court's March 21, 2018 Order is availableat https://is.gd/8Ep0e4 from Leagle.com.

Allegedly, Facebook users' data was "harvested" for CambridgeAnalytica using an app called ThisIsYourDigitalLife, misleadinglybilled as a "personality quiz"; and that when Facebook users weretricked into using the app, Facebook allowed the app to harvestnot only those Facebook users' personal information but also theinformation of their Facebook friends. The lawsuit furtheralleges that for years, Facebook has allowed hackers to use itsown search tools to "scrape" data from virtually all Facebookusers' profiles, violating their privacy and placing them at riskfor identity theft.

The lawsuit alleges Facebook falsely promised users that theirpersonal information would be protected when, in fact, Facebookknew its security was inadequate to protect users' data. It alsoalleges Facebook had a policy of selling user data to thirdparties and even implemented APIs to allow third-party apps to"harvest" user information. The lawsuit seeks relief, includingdamages and compensation for class members, and injunctive reliefto protect Facebook users' personal information.

If you would like to discuss your legal rights, you may contactFinkelstein Thompson LLP by email atcontact@finkensteinthompson.com [GN]

Facebook is a social networking company that offers a number ofproducts and platforms that enable users to connect, share,discover and communicate with each other. Misrepresentations madeby defendants concerning the sharing of its users' data andcompliance with its consent decree with the Federal TradeCommission were each materially false and misleading when madeand caused its stock to trade at artificially inflated prices ofas high as $193 per share. However, defendants failed to notifyusers that their user data had been improperly shared withCambridge Analytica and entities affiliated with CambridgeAnalytica for purposes and in ways that violated Facebook's termsof use.

On March 19, 2018, as the investing public digested thedisclosures over the weekend, the price of Facebook common stockplummeted, closing down more than $12 per share, or nearly 7%,from its close of $185.09 per share on Friday, March 16, 2018, toclose at $172.56 per share on Monday, March 19, 2018, onunusually high volume of more than 88 million shares traded,notes the complaint.

FARIS PROPERTIES: "Beyer" Suit Alleges FLSA Violation-----------------------------------------------------Jeremiah Beyer, on behalf of himself and other current and onbehalf of others similarly situated v. Faris Properties, LLC,Case No. 3:18-cv-00139 (E.D. Tenn., March 30, 2018), is broughtagainst the Defendant for violation of the Fair Labor StandardsAct.

The Plaintiff was employed by the Defendant as a non-exempt,hourly-paid employee working at the Defendant's restaurantlocated in Rockwood, Roane County, Tennessee, and later atDefendant's restaurant located in Harriman, Roane County,Tennessee. The Plaintiff worked for Defendant from March, 2015until October, 2017.

The Defendant operates over 30 McDonald's Franchise restaurantsin the Eastern District of Tennessee. [BN]

In May 2017, Schwebel Baking filed the putative class actionalleging that the Defendant has charged the Plaintiff and all theClass Members surcharges that the Defendant is trying to collectfrom them to cover its extra expenses stemming from the extremelycold month of January 2014 due to so-called "polar vortex"conditions in Ohio, Illinois, Michigan, Pennsylvania, Maryland,and New Jersey. The Plaintiff seeks declaratory and injunctiverelief and damages against the Defendant for breach of contract.The Plaintiff also seeks the same relief on behalf of a class ofthousands of similarly situated business customers of theDefendant that, like the Plaintiff, also purchased energy fromFirstEnergy Solutions pursuant to a fixed-price electricitysupply contract substantially in the form attached as Exhibit Ato the Complaint. The Defendant is a member of the PJMInterconnection, LLC Regional Transmission Organization ("RTO").

Under each customer's substantively identical Fixed-RateAgreement, the Defendant agreed to supply the Plaintiff and eachgiven Class Member with electricity during the contract period atan agreed-upon and fixed-rate per kilowatt-hour. In short, the"Regulatory Action" section of the Agreement permitted DefendantFES to "pass through" increased costs only if a RTO, electricutility, governmental entity or agency, industry reliabilityorganization, or court imposed new or additional charges orrequirements on the Defendant, or imposed a change in the methodor procedure for determining charges or requirements that"related to the Electricity Supply under this Agreement.

In March 2014, the Defendant sent a letter to the Plaintiff andall the Class Members. In the March 13, 2014 letter to thePlaintiff, the Defendant stated that January was an extremelycold month with temperatures reaching record lows, which resultedin a significant increase in energy consumption. During theseperiods of time, PJM incurred extremely high ancillary costs topurchase additional reserve generation needed to keep the bulkelectric system reliable throughout these extreme conditions.These costs and additional charges were, in turn, invoiced by PJMto all suppliers serving customers throughout the region.Pursuant to their agreement with FirstEnergy Solutions, theseadditional costs and charges are deemed a Pass-Through Event. Ontwo occasions in the following month, Plaintiff signed two newterm sheets extending its electricity supply contract with theDefendant.

After receiving the Defendant's letter in March 2014, thePlaintiff was invoiced for the "pass-through" charges at issue.The charge was separately itemized and identified in its ownsection of each invoice as "RTO Expense Surcharge." On eachinvoice, the Defendant again invited the Plaintiff to resolve anyquestions it might have about the Pass-Through cost before payingit.

In October 2014, the Plaintiff advised the Defendant in writingthat Schwebel had determined that the RTO Expense Surcharge wasimproper and did not qualify as a "Pass-Through Event." Inaccordance with the Agreement, the Plaintiff attempted in goodfaith to resolve the dispute, but has been unable to do so. Byfiling the case at bar, the Plaintiff now seeks to recover allimproperly charged amounts previously paid by Schwebel and allClass Members, as well as a declaration that the Defendant'simposition of such charges on the Plaintiff and the Class Memberswas improper.

Pending is the Defendant's Motion to Dismiss. It argues the"voluntary payment doctrine" applies to bar all of thePlaintiff's claims as a matter of law. Also before the Court isits Motion to Strike the allegations relating to representationof absent persons because the allegations themselves show that noclass action can be sustained when no putative class will presentcommon issues for adjudication that predominate over individualones.

Judge Pearson concludes that only through discovery will thePlaintiff, on behalf of itself and the class, be able todetermine whether, based on full knowledge of the underlyingfacts, all of the PJM-incurred charges qualified as "pass-throughevents" that the Defendant could pass on to its businesscustomers without breaching the Customer Supply Agreements.Dismissal of the case is not appropriate because the Defendanthas not shown as a matter of law at this time that the Plaintiffor other Class Members had anywhere near the kind of "fullknowledge" of the underlying facts that is a prerequisite to itsability to "conclusively establish," a voluntary paymentaffirmative defense.

In addition, the Plaintiff has alleged mistake of fact and thatthe March 13, 2014 letter from the Defendant misleadinglyrepresented to Schwebel that all of the charges were deemedpayable pursuant to the Agreement, and it remains to be seenwhether it can prove any of these bases for circumventing thevoluntary payment argument made by the Defendant.

Given the decision on the Defendant's Motion to Dismiss, theJudge defers a decision on the issue of whether the classallegations should be stricken pending further factualdevelopment of the record relevant to class issues.

For the reasons set forth, Judge Pearson denied both theDefendant's Motion to Dismiss and Motion to Strike.

A full-text copy of the Court's March 21, 2018 Memorandum ofOpinion and Order is available at https://is.gd/oEiblTfromLeagle.com.

The case was brought by angry shareholders after Fitbit failed todisclose problems with the build quality of its products which,when revealed, caused a significant share price fall. Given ourexperience with Fitbits, the lack of decent build quality shouldhave been instantly obvious, but there you go.

A $33m settlement might seem like a lot but the lawyers wantedtheir cut. US District Judge Susan Illston was unimpressed withthe attorneys' efforts to elicit a massive payday out of the caseby asking for 25 per cent of the award to be put into theirpockets, telling them it "might be a little rich for this case."

The judge also asked for an itemized list of their $242,402expense claim, saying she wanted to make sure there weren't any"filet mignon" dinners or first-class plane tickets stuck inthere.

She then called for a halt in proceedings to have a privatemeeting with the lawyers about their claim.

This is far from the first time that the legal system has beenannoyed at highly paid lawyers padding class action cases anddiverting money intended for end users into their firms' pockets-- or the pockets of their old universities or law schools.

Earlier this year, a group of 16 US state attorneys general wroteto the Supreme Court asking it to tear up an $8.5m legalsettlement from Google -- because none of the cash will go to thefolks the class-action lawsuit was brought on behalf of.

In that case, the attorneys argued that when the settlement wasdivided by the number of people impacted it equated to four centsper user and so wasn't worth it. And so they proposed giving themoney left after they had been paid to seven "cy pres recipients"instead.

It just so happened that three of the seven are law schools thatthe attorneys' attended -- Harvard University, StanfordUniversity and the Chicago-Kent College of Law -- and theremaining four are among Google's favorite institutions who dowork that benefit the tech giant and which the company alreadysupplies millions to -- AARP, Carnegie Mellon University, theMacArthur Foundation, and the World Privacy Forum.

It is an issue that it also getting worse: before 2000, there wasroughly one case involving cy pres recipients a year; since 2000,there have been eight a year -- and the majority of them havehappened in the past decade.

In large part that is because of lawsuits against tech companies-- who have vast global user bases in a way that few companiesever have in the past. But the system is being bent, and thestate attorneys general want the Supreme Court to come up withdefinite rules to limit the opportunity for abuse.

What is remarkable however is that such agreements are oftenapproved against the actual wishes of the litigants themselves.

In the Google case, several judges as well as outside companiesthat were pulled into the case by annoyed end users complainedabout the arrangement, with one judge noting that the money wasgoing to the "usual suspects."

In the Fitbit case, there have been three objectors to thesettlement; two of which objected to the attorneys' award.

One argued the attorneys' cut was "disproportionate to the amountof risk assumed by the attorneys" and that the more standard 15per cent fee should be applied (providing an additional $3.3m tothose actually impacted). He also argued for a "strictaccounting" of their time and expenses.

Making a stinkA second noted that while he is "the proverbial skunk at thegarden party" in objecting to the settlement, there were a numberof significant issues with the case: not least of which was thatneither side was giving the full details of their settlement,including that the attorneys were incentivized to push theagreement under a quick pay provision.

But that settlement was reached after two years of litigation anddue to the large number of people involved in the class actionlawsuit, two objectors is not seen as significant enough toderail the whole agreement.

The assumption of course is that if you don't actively complain,you are implicitly agreeing with the settlement whereas thereality on the ground is that virtually none of class actionlitigants are even aware of the case until it is settled, letalone its progress.

Judge Illston explicitly addressed that situation when she saidthe objectors concern were not sufficient to close off thesettlement altogether and noted -- as always happens in thesecase -- that those individuals always have the option to withdrawand sue the company by themselves. But, again, in reality, theydon't because of the huge effort and resources required. Whichis why class action lawsuits exist in the first place.

But the judge did criticize lawyers on both sides when she notedthey hadn't even bothered to give basic details of the case andthe allegations behind it on a website that was set up to detailthe settlement -- fitbitsecuritieslitigation.com -- a requirementfor the settlement's approval.

The lawsuit claims that Fitbit made false and misleadingstatements about its heart rate monitoring technology. Thetechnology was inaccurate and inconsistent, the lawsuit claimed,and as such represented a serious health risk to users.

The company argued against the claims but research appeared toagree with the litigants -- the fitness tracker was indeedinaccurate, and that the company knew it. When that came out,the company's share price dropped five per cent in a single day.[GN]

FIVE BOROUGH: Fails to Pay Workers Overtime, "Stepanov" Suit Says-----------------------------------------------------------------Zulfiya Stepanov, individually and on behalf of all other personssimilarly situated v. Five Borough Home Care, Inc., Case No.161196/2017 (N.Y. Sup. Ct., March 1, 2018), is brought againstthe Defendants for failure to pay overtime compensation for allhours worked in excess of 40 hours.

Five Borough Home Care, Inc. is primarily engaged in providingnursing and home health aide services at the residences of itsclients. [BN]

FMFS OF VS: Sued in N.Y. Over Failure to Properly Pay Servers-------------------------------------------------------------Shanice Willis and DaAna Queen, on behalf of themselves and allothers similarly situated v. FMFS of VS LLC d/b/a Buffalo WildWings, Case No. 703029/2018 (N.Y. Sup. Ct., February 28, 2018),is brought against the Defendants for failure to pay Servers atthe proper minimum wage rate for all hours worked, failure to payat all for the hours worked, and for failure to provide accuratewage statements in violation of the New York Labor Law.

FMFS of VS LLC owns and operates a restaurant located at 6 GreenAcres Rd W, Valley Stream, New York 11582. [BN]

FORD MOTOR: Must Reply to 2nd Amended "Baranco" Suit----------------------------------------------------In the case, DAVID BARANCO, JAMES ABBITT, HARRIET ABRUSCATO,DONALD BROWN, DANIEL CARON, ANITA FARRELL, JOHN FURNO, JAMESJENKIN, ROGER KINNUNEN, GARY KUBBER and MALISA NICOLAU,individually and on behalf of all others similarly situated,Plaintiffs, v. FORD MOTOR COMPANY, a Delaware corporation;Defendants, Case No. 3:17-CV-03580-EMC (N.D. Cal.), Judge EdwardM. Chen of the U.S. District Court for the Northern District ofCalifornia, San Francisco Division, ordered that Ford is notrequired to file an Answer to Plaintiffs' First Amended Complaintbut will respond to the Plaintiffs' Second Amended Complaint inaccordance with Fed. R. Civ. P. 15(a)(3).

On March 12, 2018, the Court entered an Order Granting In Partand Denying In Part Defendant's Motion to Dismiss PlaintiffsFirst Amended Complaint. Pursuant to that Order, the Plaintiffshave 30 days to file an amended complaint. During the FurtherCase Management Conference held on March 15, 2018, thePlaintiffs' counsel advised the Court and Ford that they will befiling a Second Amended Class Action Complaint by April 11, 2018.

Upon stipulation of the parties, it is agreed that Ford will notfile an Answer to Plaintiffs' First Amended Complaint but insteadwill file a response to their Second Amended Complaint inaccordance with Fed. R. Civ. P. 15(a)(3). The counsel for theDefendant attests that concurrence in the filing of the documenthas been obtained from each of the other signatories.

They therefore stipulated and Judge Chen granted that Ford is notrequired to file an Answer to Plaintiffs' First AmendedComplaint. Once filed, Ford will respond to the Plaintiffs'Second Amended Complaint in accordance with Fed. R. Civ. P.15(a)(3).

A full-text copy of the Court's March 21, 2018 Order is availableat https://is.gd/pwItcB from Leagle.com.

The Court entered a Memorandum Opinion and Order sanctioningDefendant for making material misrepresentations during thediscovery process, which significantly increased the Plaintiffs'costs of litigation. In recompense, the Court awarded thePlaintiffs attorneys' fees and costs and expert fees and costsattributable to Ford's discovery misconduct.

In their brief, the Plaintiffs ask for fees and costs in thetotal amount of $692,225.52.

Ford counters by arguing that once duplicative, excessive, vague,and unsupported amounts are deducted from the Plaintiffs'request, they are entitled to an award of $223,610.97.

Attorneys' Fees

The Court has concluded that the Plaintiffs are entitled toreimbursement of attorneys' fees for time associated withpreparing, negotiating, and arguing the source code protectiveorder entered in this litigation, as well as pursuing thePlaintiffs' motion for sanctions. In addition, the Plaintiffsseek reimbursement of travel time to and from a secured room inDearborn, Michigan where their counsel and experts were requiredto go in order to review source code produced by Ford. Accordingto affidavits supplied by the Plaintiffs, the total amount ofattorneys' fees sought is $351,256.63.

After subtracting duplicative and excessive hours, and reducingthe hourly rates to reasonable amounts, Ford asserts that thePlaintiffs are entitled to attorneys' fees in the amount of$77,824.25.

The parties agree that when calculating an award of attorneys'fees in this circuit, the court must follow a three-step process.First, the court must determine a lodestar figure by multiplyingthe number of reasonable hours expended times a reasonable rate.At the second step of the process, the court must subtract fromthe lodestar figure "fees for hours spent on unsuccessful claimsunrelated to successful ones. Once this calculation is completed,the court proceeds to the third step, which consists of the courtincreasing the step-two figure by some percentage of theremaining amount, depending on the degree of success enjoyed bythe party seeking fees.

In this case, the Court need not formally proceed to the secondand third steps, because the fees and expenses are being awardedas a discovery sanction, rather than as an award based upon asuccessful resolution of the case as a whole. In addition, thePlaintiffs have already performed step two of the process byreducing the portion of their fee application related to themotion for sanctions by 50% to account for the fact that theyonly succeeded on one of two grounds asserted in the motion.

Therefore, the Court focuses largely upon the lodestar figure.

Reasonable Hourly Rate

To determine whether extra jurisdictional counsel are entitled tothe prevailing hourly rates in their home jurisdiction, the courtshould consider the following questions: (1) did counsel provideservices that were not available in the court's jurisdiction; and(2) did the client make a reasonable choice in hiring extra-jurisdictional counsel, or did the client select an unreasonablyexpensive attorney?

Here, the Plaintiffs seek reimbursement of fees charged byfourteen attorneys, with hourly rates ranging from $175 to $950,and by four paralegals billing between $115 and $275 per hour.Half of the attorneys and half of the paralegals have extra-jurisdictional home bases. The Plaintiffs argue that thesepractitioners are entitled to the prevailing hourly rates intheir own communities, because they satisfy the two-part inquiryset forth in National Wildlife Federation v. Hanson, 859 F.2d313, 317 (4th Cir. 1988) (holding that a fee award based on anextra jurisdictional rate is appropriate when the complexity andspecialized nature of the case means that no attorney with therequisite skills is available locally).

According to the Plaintiffs, the size and complexity of theinstant action required them to hire a coalition of law firmswith experience in complex class action litigation, which couldnot be found exclusively in this jurisdiction. Ford counters thisargument by pointing out that a local law firm, Spilman Thomas &Battle, PLLC, played a leadership role in the litigation and itsbillings account for 40% of the fees sought by the Plaintiffs.Thus, the instant action is not so complex that no local lawyeris able to effectively prosecute it.

The undersigned agrees with Ford. Although the subject matter ofthis case is complex, both factually and legally, the Plaintiffshave failed to demonstrate that this jurisdiction lacksexperienced lawyers capable of successfully prosecuting thePlaintiffs' claims. As Ford notes, one of the Plaintiffs' leadinglaw firms is located in Charleston, West Virginia, and thePlaintiffs make no showing that Spilman Thomas & Battle is theonly local firm qualified to handle complex class actionlitigation.

Moreover, the Plaintiffs seek reimbursement of substantial expertfees. Given that the Plaintiffs relied heavily on experts tonavigate the technical aspects of the source code protectiveorder and assist in locating evidentiary support for the motionfor sanctions, the remaining tasks involved in negotiating theprotective order and pursuing the award of sanctions could havebeen accomplished by a number of lawyers who regularly appear inthis Court.

The Plaintiffs offer no evidence or focused argument in thiscase. In fact, the Plaintiffs provide no explanation for how theyselected counsel; no evidence that they searched other localfirms for comparable attorneys; and no corroboration that theextra jurisdictional attorneys in this case provided a uniqueservice that could not be offered by less expensive and equallyavailable counsel. Consequently, while the instant case certainlyrequires specialized skill, the Plaintiffs have not adequatelysupported their request for extra jurisdictional rates.

Having determined that the prevailing market rates in theSouthern District of West Virginia should be applied, the Courtnext considers the evidence submitted by the Plaintiffs toestablish the prevailing rates, as well as Ford's arguments inopposition. The parties are significantly at odds over theappropriate hourly rate to apply to each attorney included in thefee application:

Bearing in mind each attorney's experience, training,specialization, customary hourly rates, and role in the instantaction, the Court finds rates of $350, $400, and $475,respectively, to be reasonable.

In conclusion, the Court approves the following hourly rates asindicated below:

The Plaintiffs' counsel's staffing was likely no more excessivethan lawyer staffing for the defense. The Court recalls thatthree or more defense attorneys appeared at or participated inmost, if not all, court conferences. Undoubtedly, numerousdefense attorneys worked on the same matters related to thesource code protective order and Plaintiffs' motion forsanctions.

In addition, as the Plaintiffs' argue, the time billed by theircounsel for the source code protective order and the sanctionsmotion would not have been necessary at all if Ford had beenaccurate and forthright at the outset about its use, disclosure,and protection of the relevant source code. Ford's attempt todistinguish between issues at the evidentiary hearing related tosource code protection and production is unavailing, because theentire process surrounding production of Ford's source code wouldhave been shortened and streamlined if Ford had not repeatedlyand vigorously misrepresented its history of source codedisclosure.

Ford should bear in mind that the award of fees and costs in thiscase does not arise ancillary to a routine Rule 37(a) discoverymotion; rather, the award here is imposed as a sanction forFord's discovery misconduct.

The Court finds that the lodestar amounts for each attorneyshould be reduced by twenty-five percent to account for billingduplication, billing overlap, excessive billing, insufficientbilling descriptions, and block billing. This percentage fairlyaddresses Ford's legitimate concerns, while accounting for thebilling judgment already exercised by the Plaintiffs' counsel.The only time excepted from the percentage reduction is timecharged by Mr. Slavik for work in October 2015 through June 2017and time charged by Ms. Kuryak, because these time entries arenot duplicative, overlapping, or vague.

Having applied the approved hourly rates and deducting twenty-five percent from the lodestar amounts, the Plaintiffs areentitled to an award of attorneys' fees totaling $199,819.29,which divided by law firm is as follows:

The IiAS report referred to the notice by institutional investorsJupiter Asset Management and East Bridge Group calling for anextra-ordinary general meeting (EGM) of the company to removefour board members and appoint three new independent directors.

The investors called for the removal of board members BrianTempest, Harpal Singh, Sabina Vaisoha and Tejinder SinghShergill.

Brian Tempest was the former managing director and chiefexecutive officer of Ranbaxy Laboratories. He has been anon-executive independent director of Fortis Healthcare sinceAugust 2011.

The report also said that the current board should refrain frommaking decisions for Fortis until shareholders have voted on theresolutions to overhaul the current board in the EGM called byits 12.04% shareholders.

Earlier in April, The Economic Times had reported that aceinvestor Rakesh Jhunjhunwala had questioned the decisions takenby the Fortis board, given that it had been elected by the formerpromoters of the company.

The IiAS report has also raised questions over the appointmentsof former PricewaterhouseCoopers (PwC) executives Rohit Bhasinand Deepak Kapoor, as an additional director (independent) andthe head of the expert advisory committee, respectively, giventhat PwC had been the auditors of Religare group companies (partof the same group) for a long time.

The board's decision to rope in Standard Chartered Bank to assistthe expert advisory committee and the board on the sale was alsoa subject of scrutiny.

The report said Standard Chartered had been a large investor inFortis with a 3.05% stake through its private equity arm as on 31March 2017.

The proxy advisory firm believes the board should run a processthat allows all potential bidders to bid within a tight time-line.

Administering a selling process that limits the full discovery ofprice, leaves investors worried that they are being short-changed, the report said.

Fortis Healthcare has so far attracted bids from five suitors.Radiant Life Care, a hospital chain backed by private equity firmKKR & Co., is the latest bidder to join the race. The other fourbidders are TPG-backed Manipal Health, Malaysia's IHH Healthcare,China's Fosun and a consortium of Hero Enterprise InvestmentOffice and Burman Family Office.

The company has received binding offers only from TPG-backedManipal Health, IHH Healthcare and a consortium of HeroEnterprise Investment Office and the Burman Family Office.

The report said that by allowing the expert advisory committee todecide only on the binding offers, the board has already cut itswings. [GN]

The lawsuit claims that Giles County and the two privateprobation companies it uses, PSI Probation and CommunityProbation Services, have extorted money from people too poor topay fees associated with misdemeanor probation.

The lawsuit states that Giles County contracted with PSIProbation and Community Probation Services to run a "user funded"probation system.

It claims the only source of income for the probation companiesis from the fees paid to them by the people they supervise onprobation.

The lawsuit is similar to one filed in 2015 that shut down theuse of private probation in Rutherford County.

Karen McNeil is one of five people now suing Giles County and thetwo private probation companies it uses -- claiming she wasrepeatedly jailed for being too poor to pay supervision fees.

"I've got friends that sit in jail right now just cause theycouldn't pay their fees," Ms. McNeil said.

According to the lawsuit Ms. McNeil pled guilty to driving on asuspended license in 2015.

She was put on probation and ordered to pay $426 in fines andfees -- plus $45 a month to the probation company that supervisedher and $45 for each drug test.

"That's what they want to do is keep people on probation so moremoney comes into probation," Ms. McNeil said.

Ms. McNeil said she paid more than double her initial fine, butwhen she missed a probation appearance because she was in thehospital, her probation officer filed a violation of probation --and she wound up in jail.

"When you are supposed to get off they find some excuse toviolate you," Ms. McNeil said.

Ms. McNeil said she went to jail four different times over thelast three years.

She said the idea of jail terrified her so much that she paidfees out of her disability benefits and could not afford rent orutilities.

So she lived in a tent.

"I only get so much a month and if you couldn't pay your rent andyour light bill you can't live no where free," Ms. McNeil said.

Hilti is the U.S. distributor for the TE 3000-AVR breakers, hand-guided electric tools that are used for chiseling concrete,masonry, asphalt, and other excavation work. S&J alleges that itdid not know when it purchased products from Hilti that theproducts were equipped with a pre-programmed automatic shut offfunction that causes them to shut down after a specified numberof operational hours.

Forum Non Conveniens

Under 28 U.S.C. Section 1391(b), venue is proper (1) in ajudicial district in which any defendant resides; (2) in ajudicial district in which a substantial part of the eventsgiving rise to the claim occurred; or (3) if no judicial districtis otherwise appropriate, in any judicial district in which anydefendant is subject to the court's personal jurisdiction.

Hilti Did Not Waive Its Right to Enforce the Forum Selection andChoice of Law Clauses When It Previously Argued for Transfer tothe Northern District of Oklahoma

S&J argues that Hilti waived its right to assert that the caseshould be re-filed in Oklahoma state court pursuant to the forumselection clause because it sought transfer to the NorthernDistrict of Oklahoma.

Hilti has not acted inconsistently with the forum selectionclause at issue here. On the contrary, Hilti's sole actions withrespect to the forum selection clause have been to enforce theclause. Although Hilti successfully advocated that the forumselection clause contemplated either federal or state courts inTulsa, Oklahoma, the fact that venue in Oklahoma's federal courtwas ultimately deemed improper does not preclude Hilti fromasserting the correct interpretation of the clause now.

Hilti Is Not Judicially Estopped from Asserting the ForumSelection and Choice of Law Clauses As Grounds for Dismissalunder Forum Non Conveniens

It is true that Hilti argued previously that the case could bebrought in either federal or state court and that it is nowarguing the case must be brought in Oklahoma state court. Thedifference between these two positions, however, is not the kindof inconsistency or contradiction the doctrine of judicialestoppel is meant to prevent. Although the two positions mayappear facially inconsistent, they are nonetheless generallyconsistent in that both positions are efforts to enforce theforum selection clause.

Moreover, the reason for Hilti's shift in position was theNorthern District of Oklahoma's ruling. That Hilti's firstattempt to enforce the clause was predicated on a flawedinterpretation thereof does not preclude another attempt that ispredicated on the correct interpretation. In light of theNorthern District of Oklahoma's ruling that the forum selectionclause refers only to Oklahoma state court, Hilti is notjudicially estopped from advocating for the enforcement of theforum selection clause as interpreted by that court.

It Is Not Unreasonable to Enforce the Forum Selection and Choiceof Law Clauses Contracted for Because Doing So Does NotContravene a Strong Public Policy of California

The state of California does indeed have a strong public policyin favor of affording its citizens effective consumer class-action remedies. Van Slyke v. Capital One Bank, 503 F.Supp.2d1353, 1361 (N.D. Cal. 2007). The question, therefore, is whetherenforcing the forum selection and choice of law clauses herecontravenes that public policy.

Although the Court agrees with S&J that a small business canstill technically be a consumer in that it can function as apatron or customer of another business, it is clear that S&J isnot the same kind of consumer meant to be protected by the policyenumerated in Van Slyke. S&J is not an individual person dealingwith a take-it-or-leave-it contract with a large bank. On thecontrary, S&J is a corporation, albeit a small one, that dealswith both the public and other businesses.

In the same way that S&J's status as a small business does notpreclude it from being a consumer neither does such statuspreclude it from being a sophisticated commercial party. Indeed,S&J deals with complex tools and equipment used in a variety ofindustrial contexts. Therefore, S&J is relatively sophisticatedcompared to the individual consumers in Van Slyke, and thatdifference undercuts the consumer protection rationalearticulated in Van Slyke enough to compel a different conclusion.

In sum, the plain language of Section 2023(D)(3) is sufficient topreclude this Court from concluding that enforcing the agreedupon forum selection and choice of law clauses, which requirethem to bring the case in Oklahoma state court under Oklahomalaw, contravenes a strong public policy of California. As statedabove, S&J bears a "heavy burden of proof" and must clearly showthat enforcement would be unreasonable.

Because there is a legitimate possibility that S&J qualifiesunder relevant Oklahoma law, and because the rationalebuttressing Van Slyke appears distinguishable from the factsbefore this Court, it is by no means clear that enforcing theforum selection and choice of law clauses contravenes a strongpublic policy of California. Because S&J has not met its burdenin that regard, enforcing the contract as agreed by the partiesis not unreasonable.

A full-text copy of the District Court's March 22, 2018Memorandum Order is available at https://tinyurl.com/y7asykjefrom Leagle.com.

ILUKA RESOURCES: To Defend Class Action Over 2012 Disclosures-------------------------------------------------------------Esmarie Swanepoel, writing for miningweekly.com, reports thatmineral sands miner Iluka on April 24 said that it would defenditself against a class action launched by shareholders.

The company said that a number of shareholders have launched aclass action in the Federal Court of Australia, claiming breachesof continuous disclosure obligations, as well as misleading anddeceptive conduct relating to disclosures made by Iluka to themarket between April and July 2012.

During that time, Iluka announced the refinancing of its debtthrough a series of five-year bilateral revolving creditfacilities totalling A$800-million, a well as updating thecompany's production and earnings guidance for the 2012 financialyear.

Iluka on April 24 denied any liability in respect of theallegations, telling shareholders that it would defend itself,should the proceedings go ahead.

Although the proceedings have started, the applicant's third-party litigation funder has not yet determined if it willunconditionally fund the proceedings. [GN]

INTER-COAST INT'L: Court Upholds Ruling in Arbitration Dispute--------------------------------------------------------------Vin Gurrieri, writing for Law360, reports that arbitrationagreements imposed by the operator of InterCoast Colleges onworkers who could have potentially joined a pending wage-and-hourclass action were invalid, a California appellate court ruled onApril 20, upholding a lower court's conclusion that theagreements were "unfair" and "one-sided."

A three-judge panel for California's Second Appellate Districtaffirmed a ruling by Los Angeles Superior Court Judge Michelle R.Rosenblatt that arbitration agreements that Inter-CoastInternational Training Inc. told workers to sign after it was hitwith a wage-and-hour class action should not be enforced. [GN]

To: All persons or entities who purchased or acquired thepublicly traded common stock of Intuitive Surgical, Inc.("Intuitive" or the "Company") during the period from February 6,2012 through July 18, 2013, inclusive, and who were damagedthereby (the "Class").

YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rulesof Civil Procedure and an Order of the United States DistrictCourt for the Northern District of California that the above-captioned action (the "Action") has been certified to proceed asa class action on behalf of the Class as defined above. Pleasenote: at this time, there is no judgment, settlement or monetaryrecovery. A trial date in this Action has not been set.

IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BYTHIS ACTION. A full printed Notice of Pendency of Class Action(the "Notice") is currently being mailed to known potential ClassMembers.

If you are a Class Member, you have the right to decide whetherto remain a member of the Class or to "opt-out" of it (alsocalled requesting exclusion). If you want to remain a member ofthe Class, you do not need to do anything at this time other thanto retain your documentation reflecting your transactions andholdings in Intuitive common stock. If you are a Class Memberand do not opt-out from the Class, you will be bound by theproceedings in this Action, including all past, present, andfuture orders and judgments of the Court, whether favorable orunfavorable. If you move, or if the Notice was mailed to an oldor incorrect address, please send the Administrator writtennotification of your new address.

If you ask to be excluded from the Class, you will not be boundby any order or judgment of the Court in this Action, however youwill not be eligible to receive a share of any money that mightbe recovered for the benefit of the Class. You will retain anyright you have to individually pursue claims, if any, that youmay have against the Defendants with respect to the claimsasserted in the Action. Please note, if you decide to opt-outfrom the Class, you may be time-barred from asserting the claimscovered by the Action by a statute of repose and your claimscould be dismissed. To opt-out from the Class, you must submit awritten request for exclusion postmarked no later than June 8,2018, in accordance with the instructions set forth in the fullprinted Notice. Pursuant to Rule 23(e)(4) of the Federal Rulesof Civil Procedure, it is within the Court's discretion whetherto allow a second opportunity to request exclusion from the Classin the event there is a settlement or judgment in the Action.

Dated: April 23, 2018

BY ORDER OF THE COURT:United States District Court for theNorthern District of California [GN]

An investigation by the New York Times sheds light on a majorpush by plaintiffs attorneys to convince women with vaginal meshimplants to get the devices removed. If they get them removed,they are far more likely to get a major settlement from one ofthe two major implant manufacturers: Johnson & Johnson and BostonScientific.

In some cases, it seems, women who aren't experiencing problemswith the implants are nevertheless being convinced by aggressivemarketers that their lives are in danger and they need to havethem removed.

Lawyers who are building major class-action cases againstmanufacturers hire marketing firms to seek out potential clients.Providing crucial financing are a number of major financialinstitutions, including banks, hedge funds and private equityfirms.

Firms such as Law Cash, a New York-based firm, offer patientshigh-interest loans for the surgeries, which they only have torepay if they are later awarded a settlement.

The financing companies connected the women to doctors who werewilling to quickly perform surgeries. The Times investigationfocused on a group of surgeons in Georgia and Florida who werefunneled patients via a company, Surgical Assistance, whichserved as a middle-man between the financing companies anddoctors.

Although a sizeable minority of women who receive implantsexperience complications, those who get them removed are alsovery likely to have negative side-effects. The mesh bonds withthe tissue, meaning that removal is likely to cause internalscarring.

"(S)caring a patient who has limited to no symptoms into removalis just dangerous and irresponsible," Dr. Victor Netti, a surgeonand complex pelvic specialist, tells the New York Times.

A number of the women who talked to the Times about gettingpressured into surgeries said that they have suffered severesymptoms following the removal, including incontinence, severepain and swelling.

One woman, Jerri Plumber, is now suing Law Cash for its role inpressuring her into what she and her primary care physicianassert was an unnecessary operation that led to permanent healthissues.

All of the entities that have been accused of unethical practicesdeny that women were pressured into operations that weren'tnecessary.

Reuters has also investigated law firms and others that werepressuring patients into the surgeries. [GN]

JONES MOTOR: Court Tosses Class Action Over Work Comp Premiums--------------------------------------------------------------Tomas Kassahun, writing for Madison - St. Clair Record, reportsthat the U.S. District Court for the Southern District ofIllinois has dismissed a case against Jones Motor Co. Inc. andZurich American Insurance Co.

District Judge Nancy J. Rosenstengel granted a motion to dismissbrought by Jones Motor Co. Inc. and Zurich American Insurance Co.on March 30 on grounds that the plaintiff "failed to state aclaim upon which relief can be granted."

Michael Daley sued on behalf of himself and class members whowere truck drivers for Jones Motor, according to the ruling.

According to the order, Jones Motor conspired with Zurich tomisclassify its drivers as independent contractors in order toavoid the Illinois Workers' Compensation Act and workers'compensation premiums.

Mr. Daley alleged Jones Motor made the drivers sign contracts,indicating that the drivers were independent contractors and thatworkers' compensation benefits would be provided by Jones Motorto the drivers in the event they were injured on the job.

"The agreements required the drivers to purchase an 'occupationalaccident policy' from Zurich and to allow Jones Motor to make adeduction from their wages to cover the cost of the policy,"Judge Rosenstengel wrote in the opinion. "The deduction wasapproximately $38 per week."

According to Mr. Daley, the drivers were deceived into "payingpremiums for occupational accident policies that were worthless,or worth far less than represented, because the policies providedcoverage for work-related injuries that were already covered bythe Workers' Compensation Act."

After Jones Motor raised concerns about the jurisdiction of thecourt and the Illinois Workers' Compensation Commission, thecourt found the argument invalid.

Judge Rosenstengel ruled that Mr. Daley can't make claims withoutproving that he was an employee as defined by the Worker'sCompensation Act and that Jones Motor failed to provide him withthe benefits he was entitled to under the Act and insteadunlawfully required him to pay for the benefits himself.

"Only the Commission is empowered to make these determinations,"the opinion stated. "Until the Commission does so, this court isincapable of resolving Daley's claims, and they must be dismissedfor failure to state a claim upon which relief can be granted."

Mr. Daley had argued that the Illinois Workers' CompensationCommission can't have exclusive jurisdiction over his employmentstatus and entitlement to benefits because he doesn't have apending workers' compensation claim for a workplace injury ordeath.

The court said Mr. Daley didn't explain why a pending workers'compensation would be necessary to report a company's workers'compensation fraud.

"Surely, an individual is not required to injure himself at workand file a workers' compensation claim before he can report thatthe company was wrongfully making him pay for his own workers'compensation insurance?" the opinion stated. [GN]

JPMORGAN CHASE: FX Price-Fixing Suit vs HSBC, RBS Dismissed-----------------------------------------------------------The United States District Court for the Southern District of NewYork granted in part and denied in part Defendants' Motion toDismiss for lack of personal jurisdiction pursuant to FederalRule of Civil Procedure 12(b)(2) the case captioned JOHN NYPL, etal., Plaintiffs, v. JPMORGAN CHASE & CO., et al., Defendants, No.15 Civ. 9300 (LGS)(S.D.N.Y.).

The Plaintiffs commenced this putative class action under theSherman Antitrust Act (Sherman Act), alleging that they paidinflated foreign currency exchange rates caused by an allegedconspiracy among Defendants to fix prices in the foreign exchange(FX) or foreign currency market. The Plaintiffs allegedlypurchased foreign currency from the Defendants in the consumerretail market. The Plaintiffs allege that there is "a mechanical,direct correlation" between the FX benchmark rates that theDefendants allegedly manipulated and the prices that theDefendants charged the Plaintiffs.

Specifically, the Plaintiffs allege that the prices theDefendants charged for foreign currency in the consumer retailmarket were the benchmark rates on the day of the transactionplus a small handling fee or commission.

A prima facie showing of personal jurisdiction requires: (1)procedurally proper service of process, (2) a statutory basis forpersonal jurisdiction that renders such service of processeffective and (3) that the exercise of personal jurisdictioncomports with constitutional due process principles.

The parties' dispute therefore concerns whether or not theexercise of personal jurisdiction would violate constitutionaldue process.

Plaintiffs assert three alternative grounds for personaljurisdiction over each of the Foreign Defendants: (1) consent,(2) general jurisdiction and (3) specific jurisdiction.

Consent to Jurisdiction

Defendant RBS plc noted that it had reached a settlement in aseparate class action before this Court, but this does not implyconsent to the Court's jurisdiction in this case. A party'sconsent to jurisdiction in one case extends to that case aloneand in no way opens that party up to other lawsuits in the samejurisdiction in which consent was given.

A court may assert general jurisdiction over foreign (sister-state or foreign country) corporations to hear any and all claimsagainst them when their affiliations with the State are socontinuous and systematic as to render them essentially at homein the forum State.

The Plaintiffs assert without analysis that the Defendants meetthe Tyrrell standard based on admissions in the Plea Agreementsand Deferred Prosecution Agreement, and on internet advertisingaccessible to consumers in the United States and New York.

The Court finds that the Plaintiffs have failed to show that anyof these Foreign the Defendants presents an exceptional case.Based on the Foreign Defendants' sworn statements which thePlaintiffs do not contradict the Plaintiffs cannot make a primafacie showing of general jurisdiction over any of the ForeignDefendants.

Specific Jurisdiction

The Plaintiffs claim without factual support that varioussubsidiaries of each holding company formed a single economicunit with their corporate parent which "enveloped theirsubsidiaries into their conspiracy and that the actions of thesubsidiaries should thus be attributed to the parents." It is ageneral principle of corporate law deeply ingrained in oureconomic and legal systems that a parent corporation is notliable for the acts of its subsidiaries, the Court said, citingUnited States v. Bestfoods, 524 U.S. 51, 61 (1998).

The Plaintiffs do not provide sufficient facts or argument insupport of a veil-piercing or alter ego analysis. The Plaintiffsargue that there is no basis for distinguishing between parentsand their subsidiaries because of text from their websites usingonly their logo name and waiving any distinction between theirvarious legal entities and brick and mortar addresses. ThePlaintiffs cannot avoid HSBC's and RBS's corporate form based onthese allegations alone.

In light of this, the Plaintiffs' allegations do not make a primafacie showing of specific jurisdiction over HSBC Holdings plc orRBS Group plc. As the Plaintiffs have not made a prima facieshowing of personal jurisdiction over these two holdingcompanies, the Plaintiffs' claims against HSBC Holdings plc orRBS Group plc are dismissed.

For these reasons, (i) the motions of BPLC, RBS plc and UBS AG todismiss for lack of personal jurisdiction are denied; and (ii)the motions of HSBC Holdings plc and RBS Group plc to dismiss forlack of personal jurisdiction are granted.

A full-text copy of the District Court's March 22, 2018 Opinionand Order is available https://tinyurl.com/y9eap2ng fromLeagle.com.

LAYNE CHRISTENSEN: Rigrodsky & Long Files Securities Class Action-----------------------------------------------------------------Rigrodsky & Long, P.A., on April 23 disclosed that it has filed aclass action complaint in the United States District Court forthe Southern District of Texas on behalf of holders of LayneChristensen Company ("Layne") (NasdaqGS:LAYN) common stock inconnection with the proposed acquisition of Layne by GraniteConstruction Incorporated and Lowercase Merger Sub Incorporated("Granite") announced on February 14, 2018 (the "Complaint").The Complaint, which alleges violations of the SecuritiesExchange Act of 1934 against Layne, its Board of Directors (the"Board"), and Granite, is captioned Witmer v. Layne ChristensenCompany, Case No. 4:18-cv-01051 (S.D. Tex.).

If you wish to discuss this action or have any questionsconcerning this notice or your rights or interests, pleasecontact plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serraat Rigrodsky & Long, P.A., 300 Delaware Avenue, Suite 1220,Wilmington, DE 19801, by telephone at (888) 969-4242, by e-mailat info@rl-legal.com, or at http://rigrodskylong.com/contact-us/.

On February 13, 2018, Layne entered into an agreement and plan ofmerger (the "Merger Agreement") with Granite. Pursuant to theterms of the Merger Agreement, shareholders of Layne will receive0.27 shares of Granite common stock for each share of Layne stockthey own (the "Proposed Transaction").

Among other things, the Complaint alleges that, in an attempt tosecure shareholder support for the Proposed Transaction,defendants issued materially incomplete disclosures in a Form S-4Registration Statement (the "Registration Statement") filed withthe United States Securities and Exchange Commission. TheComplaint alleges that the Registration Statement omits materialinformation with respect to, among other things, Layne'sfinancial projections, the analyses performed by Layne'sfinancial advisor, and potential conflicts of interest. TheComplaint seeks injunctive and equitable relief and damages onbehalf of holders of Layne common stock.

If you wish to serve as lead plaintiff, you must move the Courtno later than June 22, 2018. A lead plaintiff is arepresentative party acting on behalf of other class members indirecting the litigation. Any member of the proposed class maymove the Court to serve as lead plaintiff through counsel oftheir choice, or may choose to do nothing and remain an absentclass member.

LEGACY RESERVES: Doppelt Asserts Breach of Contract---------------------------------------------------Jeffrey L. Doppelt, individually and on behalf of all otherssimilarly situated, Plaintiff, v. Legacy Reserves LP, and LegacyReserves GP, LLC, and Legacy Reserves Inc., Defendants, Case No.2018-0225, (Del. Ch., March 28, 2018), seeks to remedy thedefendants' breach of contract and breach of the duty of goodfaith and fair dealing in connection with a proposed transactionin which Legacy will be converted from a partnership to C-Corporation and the preferred units of Legacy converted intoshares of common stock of the corporation.

Plaintiff is the owner of the 8.00% Series A Fixed-to-FloatingRate Cumulative Redeemable Perpetual Preferred Units and the8.00% Series B Fixed Fixed-to-Floating Rate Cumulative RedeemablePerpetual Preferred Units issued by Legacy. Doppelt claims thatdistributions on those units have not been declared for over twoyears and that Legacy has improperly reported accumulated butundeclared distribution amounts as guaranteed payments to theholders of the said preferred units and that Legacy has no rightunder their contract to convert the preferred units because theconversion transaction is not a "change of control" and does notallow the partnership to compel the holders of said preferredunits to convert those units. [BN]

LEPRINO FOODS: Court Narrows Claims in "Perez" Wage & Hour Suit---------------------------------------------------------------The United States District Court for the Eastern District ofCalifornia granted Defendant's Motion to Dismiss the Plaintiff'sthird and eighth causes of action for failure to pay overtimewages and conversion in the case captioned JOHN PEREZ and onbehalf of all other similarly situated individuals, Plaintiff, v.LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODSDAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50,inclusive, Defendants, Case No. 1:17-CV-00686-AWI-BAM (E.D.Cal.).

The Plaintiff filed the instant wage and hour class action onbehalf of himself and other similarly situated non-exempt, hourlyunionized employees at the cheese processing plant operated byDefendants Leprino Foods Company and Leprino Foods Dairy ProductsCompany (Leprino) in East Lemoore, California (East LemoorePlant). The central factual allegation in the Plaintiff'saction is that Leprino has a practice of requiring the Plaintiffand the putative class members to work substantial amounts oftime without pay.

The Collective Bargaining Agreement

Leprino emphasizes the following sections of the CBA:

1. The lowest hourly wage rate for any employee provided forin the CBA is $12.99.

2. Employees who are required to change into and out ofuniforms will be paid a total of 14 minutes of additionalcompensation for donning and doffing at the straight time ratefor each shift worked. This compensated time is not consideredhours worked.

3. Time and one-half (1-1/2) will be paid for all hours workedabove eight (8) hours within nine and one-half (9-1/2)consecutive hours in any one (1) day, or forty (40) hours in anyone (1) week, whichever is greater.

Plaintiff's Third Cause of Action: Failure to Pay Overtime Wages

California Labor Code Section 510 requires an employer to pay anon-exempt employee overtime for any work in excess of eighthours in one workday or forty hours in one workweek.

However, California Labor Code Section 514 provides that Section510 does not apply to an employee covered by a valid collectivebargaining agreement if the agreement expressly provides for thewages, hours of work, and working conditions of the employees,and if the agreement provides premium wages for all overtimehours worked and a regular hourly rate of pay for those employeesof not less than 30 percent more than the state minimum wage.

Leprino is correct that the CBA in this action meets therequirements of Section 514 for exclusion from the grasp ofSection 510: it provides for (1) wages, hours of work, andworking conditions of the putative class members, (2) a premiumwage for all overtime worked (as appropriately defined by theCBA), and (3) provides a regular hourly rate of at least 30% morethan the state minimum wage. The overtime requirements of Section510 do not apply to the putative class members. As a result, thePlaintiff's Section 510 claim fails and any right to overtimecompensation can arise only from the CBA.

Plaintiff's third cause of action will therefore be dismissedwithout leave to amend.

Plaintiff's Eighth Cause of Action: Conversion

The Plaintiff's conversion cause of action is identical. TheDefendants contend that the Plaintiff's conversion claim failsbecause he cannot articulate a converted sum capable ofidentification and insofar as it is premised upon failure to payovertime wages and meal period premiums. The Court only addressesthe Defendants' first argument.

The Plaintiff's allegations make clear that precise calculationof a specific sum of money owed is not possible. The Plaintiff,in sum, acknowledges that no records exist from which exactcalculation of a sum converted can be drawn. All of thePlaintiff's proposals suggest a need to recreate records thatwould permit an approximation of a sum owed. Because no precisesum capable of being ascertained is alleged, the Plaintiff'seighth cause of action for conversation is not cognizable andmust be dismissed without leave to amend.

Accordingly, the Defendants' motion to dismiss is granted.The Plaintiff's Third Cause of Action is dismissed without leaveto amend. The Plaintiff's Eighth Cause of Action is dismissedwithout leave to amend. The Plaintiff's demand for injunctiverelief is dismissed without leave to amend.

A full-text copy of the District Court's March 22, 2018 Order isavailable at https://tinyurl.com/y7r7j2y4 from Leagle.com.

The Complaint alleges that, during the Class Period, Defendantsviolated provisions of the Exchange Act by issuing false andmisleading press releases, filings with the U.S. Securities andExchange Commission ("SEC"), and statements during investor andanalyst conference calls. Macquarie owns and operates aportfolio of infrastructure and infrastructure-like businesses.Macquarie's most important business segment is its International-Matex Tank Terminals ("IMTT") business, which provides bulkliquid storage and handling services at marine terminals in theUnited States and Canada.

Throughout the Class Period, Defendants misrepresented andconcealed material risks facing the IMTT business. Defendantsrepeatedly emphasized IMTT's "very strong" performance and "high"utilization rates. Defendants touted Macquarie's "goodvisibility" into "macroeconomic factors influencing supply anddemand" as evidence of IMTT's stability, but concealed IMTT'sdependence on heavy residual oil, the use of which had been indecline for years. Rather than disclose the material risk to theCompany presented by the decline in heavy residual oil products,Defendants downplayed Macquarie's exposure to fluctuations in theuse of petroleum products. Defendants also provided falseassurances regarding the sustainability of Macquarie's dividend.

Defendants' misrepresentations and material omissions renderedinvestors unable to appreciate or assess the material risks toIMTT of shifting commodity demands, and the resultant impact tothe Company's dividend. When the truth regarding IMTT'sdependence on heavy residual fuel oils was finally revealed onFebruary 21, 2018 and Macquarie announced that it would beslashing its dividend by 31%, the price of the Company's stockdeclined significantly.

If you wish to serve as lead plaintiff for the Class, you mustfile a motion with the Court no later than June 25, 2018, whichis the first business day on which the District Court for theSouthern District of New York is open that is 60 days after thepublication date of April 24, 2018. Any member of the proposedclass may move the Court to serve as lead plaintiff throughcounsel of their choice, or may choose to do nothing and remain amember of the proposed class.

City of Riviera Beach General Employees Retirement System isrepresented by BLB&G, a firm of over 100 attorneys with officesin New York, California, Louisiana, and Illinois. If you wish todiscuss this Action or have any questions concerning this noticeor your rights or interests, please contact Avi Josefson of BLB&Gat 212-554-1493, or via e-mail at avi@blbglaw.com.

Manhattan Helicopters LLC is a New York corporation that owns andoperates Manhattan Helicopters located at Downtown ManhattanHeliport 6 East River Piers New York, New York, 10004. Plaintiffsworked as customer service representatives, working more thanforty hours per week and/or in excess of 8 hours in a workdaywithout being paid overtime, says the complaint. [BN]

MDL 2804: River Forest Joins Opioid Crisis Class Action-------------------------------------------------------Steve Schering, writing for Pioneer Press, reports that RiverForest trustees have authorized the village to join a largerclass-action lawsuit targeting the manufacturers of opioids.

Trustees unanimously approved a retention agreement April 9 withthe Edelson PC law firm, which is one of three firms leading acoordinated, multi-state opioid litigation coalition.

According to River Forest village attorney Greg Smith, multiplelawsuits have been filed by various municipalities from acrossthe country against the manufacturers and distributors of high-powered pain medications.

"Because of the public taxpayer funds that have been spenttreating overdoses, thefts, employee addictions and things thatare related to opioids, there is currently pending in the federalcourt in Ohio a single, consolidated case of all these hundredsof cases brought by different units of government," Mr. Smithsaid. "[River Forest] will be joining other area communities,including the city of Chicago, Cook County as well as other localcommunities, which have spent taxpayer funds that are hoped to beand should be compensable from the makers of these opioids."

Village Administrator Eric Palm said expenses incurred by thevillage to fight the opioid epidemic include police and firesalaries, and costs related to the use of Narcan, which is usedto treat overdose victims.

"The involvement of police and fire dealing with overdoses is theprimary reason [for the legal action]," Mr. Palm said. "[Thevillage spends money] using Narcan, training to use Narcan andresponding to other calls related to opioid use."

According to Edelson's website, hundreds of lawsuits have beenfiled throughout the country against pharmaceutical manufacturersalleging that the companies deceived physicians and consumersabout the dangers of prescription painkillers. While Edelson isone of three firms leading the coalition, a larger legal team,comprised of a dozen firms spread out across the nation, agreedto coordinate state court litigation efforts to both increaseefficiencies and speak with a unified voice.

According to Smith, the agreement is a contingency arrangementwith the Edelson law firm, which means the village will pay forlegal services only if it is awarded compensation by a court.

Smith said indications are the judge in the case is pushing for aresolution or settlement to occur sometime this year.

Board members overwhelmingly voiced their support for theresolution.

"I don't see any downside given the epidemic we see in ournation," Village President Cathy Adduci said. [GN]

MEDICAL SOLUTIONS: Court Issues Privacy Notice Order in "Dittman"-----------------------------------------------------------------The United States District Court for the Eastern District ofCalifornia issued an Order Regarding Privacy Notice and Opt-OutProcedure and Disclosure of Putative Class Member ContactInformation in the case captioned Bryon Dittman, an individual onbehalf of himself and others similarly situated, Plaintiffs, v.MEDICAL SOLUTIONS, L.L.C.; and DOES 1 to 10 inclusive,Defendants, Case No. 2:17-cv-01851-MCE-CKD (E.D. Cal.).

Pursuant to the privacy notice and opt-out procedure, theDefendant will provide the third-party administrator, PhoenixSettlement Administrators (Phoenix), the Requested ContactInformation of the Putative Class Members employed by Defendantnationwide since January 1, 2016, who will be selected by takingthe first 920 sorted alphabetically by last name.

Phoenix will mail a privacy notice and opt-out postcard in theform attached to the Stipulation as Exhibit A to those PutativeClass Members.

The Putative Class Members will have 30 days to opt-out byreturning a pre-addressed, postage pre-paid postcard in the formattached to the Stipulation as Exhibit B to Phoenix.

Phoenix will release to Plaintiff's counsel the Requested ContactInformation for all individuals who do not timely opt-out.

A full-text copy of the District Court's March 22, 2018 Order isavailable at https://tinyurl.com/y8cj6koa from Leagle.com.

MEDICIS PHARMA: Settles Generic Pay-for-Delay Class Action----------------------------------------------------------Christina Davis, writing for Top Class Actions, reports thatMedicis Pharmaceutical Corp. and Impax Laboratories have agreedto pay a total of $43 million to end a class action lawsuitalleging they violated state antitrust and consumer protectionlaws and unjust enrichment laws by agreeing not to compete withother drug companies, keeping lower-cost generic versions ofSolodyn off the market.

Lead plaintiffs, including health insurers and consumers, allegedin several class action lawsuits that a cheaper, generic versionof the acne medicine, Solodyn, was kept off the market as a partof a conspiracy by drug companies to keep the costs of the drughigh. The class action lawsuits were eventually consolidatedinto multidistrict litigation (MDL).

Medicis and Impax do not admit any liability under the terms ofthe class action settlement, but agreed to pay two Classes -- aconsumer and third-party payor Class -- along with attorney feesand costs and incentive awards.

Consumer Class Members include those who purchased Solodynbetween July 23, 2009 and Feb. 25, 2018 and reside in certainstates.

Third-Party Payor Class Members include all health insurancecompanies, third-party administrators, health maintenanceorganizations, health and welfare plans that make payments fromtheir own funds, and other health benefit providers and entitieswith self-funded plans that contract with a health insurer oradministrator to administer their prescription drug benefits whopurchased Solodyn between July 23, 2009 and Feb. 25, 2018 incertain states.

The deadline to object to the Medicis settlement is May 28, 2018.Those Class Members who want to object to the Impax settlementhave until June 18, 2018 to do so.

Potential Award"At this time, it is unknown how much each member of the Classwho submits a valid claim will receive. Payments will be based ona number of factors, including the number of valid claims filedby all members of the Class and the dollar value of each memberof the Class' purchase(s) in proportion to the total claimsfiled."

Proof of PurchaseNo proof of purchase necessary; however, the settlementadministrator may ask for additional proof of payment.

NOTE: If you do not qualify for this settlement do NOT file aclaim.

Remember: you are submitting your claim under penalty of perjury.You are also harming other eligible Class Members by submitting afraudulent claim. If you're unsure if you qualify, please readthe FAQ section of the Settlement Administrator's website toensure you meet all standards (Top Class Actions is not aSettlement Administrator). If you don't qualify for thissettlement, check out our database of other open class actionsettlements you may be eligible for.

Claim Form Deadline7/31/2018

Case NameIn re: Solodyn (Minocycline Hydrochloride) Antitrust Litigation,Case No. 1:14-md-02503, in the U.S. District Court for theDistrict of Massachusetts

If you or a loved one suffered from adverse side effectsfollowing the Zostavax shingles vaccine, you may qualify to filea Zostavax lawsuit or class action lawsuit.

Overview: Zostavax Shingles VaccineThe Zostavax shingles vaccine is an immunization used for theprevention of shingles in people over the age of 50. The vaccinecontains a weakened chickenpox virus and helps the immune systemprotect against the development of shingles, which is thought tobe caused by a reaction to the dormant chickenpox virus.

According to the patient information sheet released by Merck,reported shingle vaccine side effects include headaches, localreaction to shingles injection, fever, joint pain, muscle pain,nausea, and chickenpox or shingles after the vaccine.

However, other more severe side effects have been reported. TheU.S. Food and Drug Administration (FDA) has received reports ofblindness, paralysis, brain damage, and death, prompting thefederal agency to issue two black box warning changes to Zostavaxlabels. In 2016, the drug's warnings were expanded to includepotential vision damage caused by inflammation of the eye.

Zostavax LawsuitsLawsuits regarding the Zostavax shingles vaccine have been filedin federal and state courts alleging that the vaccine causesserious adverse side effects.

The first Zostavax lawsuit was filed in February 2017 in aPhiladelphia court by a woman alleging that she experiencedheadaches, dizziness, and blurred vision as a reaction toshingles injection. In the long term, she continued to sufferfrom vision problems in her right eye, elevated blood pressure,headaches, and dizziness.

The Zostavax complaint mentions the numerous reports made to theFDA regarding adverse side effects since the vaccine's release in2006.

The lawsuit claims that Merck failed to properly inform thepublic of the risk of developing shingles and other serious sideeffects from the vaccine.

"Despite this information and the potential correlation betweenbeing administered the Zostavax vaccine and developing aninfection within a relatively short period of time, leading tothe development of shingles or varicella-zoster virus pneumonia,Merck failed to properly address and provide this informationboth to patients and the medical providers prescribing thevaccine," the Zostavax lawsuit states.

If you or a loved one experienced an adverse shingle shotreaction after being administered the Zostavax shingles vaccine,you may have a legal claim. [GN]

MYRIAD GENETICS: June 19 Lead Plaintiff Motion Deadline Set-----------------------------------------------------------The securities litigation law firm of Brower Piven, AProfessional Corporation, on April 23 disclosed that a classaction lawsuit has been commenced in the United States DistrictCourt for the District of Utah on behalf of purchasers of MyriadGenetics, Inc. (NASDAQ:MYGN) ("Myriad" or the "Company")securities during the period between August 13, 2014 and March12, 2018, inclusive (the "Class Period"). Investors who wish tobecome proactively involved in the litigation have until June 19,2018 to seek appointment as lead plaintiff.

If you wish to choose counsel to represent you and the class, youmust apply to be appointed lead plaintiff and be selected by theCourt. The lead plaintiff will direct the litigation andparticipate in important decisions including whether to accept asettlement for the class in the action. The lead plaintiff willbe selected from among applicants claiming the largest loss frominvestment in Myriad securities during the Class Period. Membersof the class will be represented by the lead plaintiff andcounsel chosen by the lead plaintiff. No class has yet beencertified in the above action.

The complaint accuses the defendants of violations of theSecurities Exchange Act of 1934 by virtue of the defendants'failure to disclose during the Class Period that Myriad wassubmitting false or otherwise improper claims for payment underMedicare and Medicaid for the Company's hereditary cancer testingwhich would subject Myriad to heightened regulatory scrutinyand/or enforcement action, and its revenues from its hereditarycancer testing were in part the product of improper conduct andunlikely to be sustainable.

According to the complaint, following a March 12, 2018announcement that the Company had received a subpoena from theDepartment of Health and Human Services in connection with aninvestigation into possible false or otherwise improper claimssubmitted for payment under Medicare and Medicaid relating toMyriad's hereditary cancer testing, the value of Myriad sharesdeclined significantly.

If you have suffered a loss in excess of $100,000 from investmentin Myriad securities purchased on or after August 13, 2014 andheld through the revelation of negative information during and/orat the end of the Class Period and would like to learn more aboutthis lawsuit and your ability to participate as a lead plaintiff,without cost or obligation to you, please contact Brower Piveneither by email at hoffman@browerpiven.com or by telephone at(410) 415-6616.

Attorneys at Brower Piven have extensive experience in litigatingsecurities and other class action cases and have been advocatingfor the rights of shareholders since the 1980s. If you choose toretain counsel, you may retain Brower Piven without financialobligation or cost to you, or you may retain other counsel ofyour choice. You need take no action at this time to be a memberof the class. [GN]

MYRIAD GENETICS: Faces Two Securities Class Actions---------------------------------------------------GenomeWeb reports that two law firms have filed class actionlawsuits against Myriad Genetics on behalf of investors, allegingthat the molecular diagnostic firm failed to accurately disclosehow it billed Medicare and Medicaid for its myRisk HereditaryCancer test.

Pomerantz LLP filed a class action lawsuit on behalf of investorswho purchased or acquired common shares in Myriad between Aug.13, 2014 and March 12, 2018. The complaint alleges that duringthis time, the company made false and misleading statements aboutits business, operational, and compliance policies.Specifically, Pomerantz is accusing Myriad of misleadinginvestors or failing to disclose that it was submitting improperclaims for payment under Medicare and Medicaid for hereditarycancer testing; that this conduct could subject the firm togreater regulatory scrutiny and enforcement action; that revenuesgarnered for hereditary cancer testing were the result ofimproper conduct and not sustainable; and that Myriad's publicstatements on these matters were false.

Rosen Law firm also announced a class action lawsuit on behalf ofpurchasers of securities in Myriad while making the sameallegations, though no class has yet been certified in that suit.

"We are aware of a shareholder lawsuit that was filed in the USDistrict Court in Utah," Myriad spokesperson Ron Rogers said inan email to GenomeWeb. "We believe the claims are without merit,and the company intends to vigorously defend itself in thismatter."

The lawsuits follow Myriad's announcement on March 12 that itreceived a subpoena from the US Department of Health and HumanServices' Office of Inspector General related to "aninvestigation into possible false or otherwise improper claimssubmitted for payment under Medicare and Medicaid." The subpoenacovers a period starting Jan. 1, 2014 through March 12, 2018 andinvolves the firm's billing practices related to its myRisk test.

The test was launched in September 2013 as a 25-gene panel, butnow gauges 28 genes associated with risk for eight hereditarycancers. The panel always included analysis of BRCA1 and BRCA2.

The class action lawsuits suggest that the OIG's actions againstMyriad have raised questions about the extent to which Myriad hadused CPT codes 81211 and 81213 -- describing full sequencinganalysis of BRCA1/2 and duplication and deletion analysis of thegenes -- to garner Medicare payment for the myRisk panel.

CMS had issued coding edits to block labs from frequentlystacking these codes, which together amount to around $2,900 inpayments. It seems CMS has guided companies to instead use CPTcode 81162 (describing comprehensive analysis of BRCA1/2), andonly bill CPT codes 81211 and 81213 with the use of a modifier toindicate that separate services have been performed on differentdays. Under the Protecting Access to Medicare Act, the price forCPT Code 81162 is $2,253 in 2018, and would be reduced to $2,018in 2019 and to $1,825 in 2020.

"When the true details entered the market, the lawsuit claimsthat investors suffered damages," according to a statement fromRosen Law firm. Following Myriad's announcement of the subpoena,the company's stock price fell more than 12 percent and closed at$29.01 on March 13, Pomerantz noted.

At a meeting sponsored by financial services firm Cowen, MyriadCEO Mark Capone said that 7 percent of its revenue for hereditarycancer testing comes from Medicare, and provided more detailsaround the company's Medicare billing practices. He explainedthat when it comes to commercial payors, pricing and coding areagreed upon in advance as part of contracts.

However, Capone said that Medicare is different in thatphysicians typically order an integrated BRACAnalysis test whichassesses the BRCA1 and BRCA2 genes associated breast and ovariancancer and then they turn to myRisk for analysis of theadditional 26 genes associated with eight hereditary cancers.The integrated BRACAnalysis test is performed at two differentlabs, one that does Sanger sequencing and another that gaugeslarge rearrangements. The BRCA test results are then billed usingCPT Code 81162.

It is unclear how this explanation squares with Myriad's publiclyoutlined strategy of moving its hereditary cancer testing to themyRisk panel (which includes analysis of BRCA1/2 in addition toother genes) by mid-2015 and transitioning BRACAnalysis into acompanion diagnostic.

In a Form 10-K filed with the SEC, Myriad has stated that thepenalties for violating the federal False Claims Act couldinclude payment of up to three times the damages sustained by thegovernment, civil penalties ranging from $5,500 to $11,000 foreach false claim, and exclusion from the federal health careprograms. [GN]

NEW YORK: NYPD Sued for Using Information from Sealed Cases-----------------------------------------------------------Andrew Denney, writing for New York Law Journal, reports that theNew York City Police Department's practice of using informationfrom dismissed and sealed cases for everyday law enforcementoperations, as well as sharing the information with fellow lawenforcement agencies, violates state law, according to a suitfiled on April 24.

The Bronx Defenders and attorneys from Cleary Gottlieb Steen &Hamilton filed the proposed class action in Manhattan SupremeCourt, alleging that the NYPD is violating a New York law passedin 1976 that was intended to prevent stigmatization of defendantswho were charged with felonies and misdemeanors, but notconvicted.

The use of sealed information disproportionately affects blackand Hispanic defendants, the suit alleged, and the scope of theissue is potentially expansive: from 2014 to 2016, the suitstated, the department made 820,000 arrests in which it collectedsensitive personal information like addresses, Social Securitynumbers and photographs and that more than 400,000 of thosearrests should be sealed.

In the same time frame, the suit stated, there were more than330,000 arrests of black and Hispanic defendants that should besealed, compared with about 50,000 arrests of white defendants.

The information the NYPD collects is stored in several differentdatabases, the suit alleged, and is used for criminalinvestigations and for various everyday police decisions, such aswhether or not to arrest someone who would otherwise receive acivil summons and whether an arrestee should be labelled as arecidivist.

Information from sealed cases is also shared with prosecutors andsometimes the media, the suit alleged. Information from sealedcases might be used to shape plea agreements for defendants, theplaintiffs alleged, but that defense attorneys are often left inthe dark as to whether or not sealed information about theirclients is being relied upon until the eve of trial.

In a news release, Jenn Rolnick Borchetta, deputy director of TheBronx Defenders' impact litigation practice, said the NYPD'sdatabase "marks people for life," even if they haven't beenconvicted of a crime.

"The NYPD's use of sealed records violates a law that protectsprivacy and the presumption of innocence. We seek to enforce thelaw and end an NYPD practice that places people of color at riskof heightened surveillance and harsher punishment based merely onallegations."

A spokesman for the city's Law Department said in a briefstatement that it would review the suit and respond inlitigation.

New York's sealing statute, contained within Criminal ProcedureLaw Sec 160, was later expanded to include defendants convicted ofnoncriminal offenses.

The statute requires law enforcement agencies to seal records ofarrests that did not result in convictions and destroy or returnphotographs and fingerprints taken in the commission of thosearrests.

Law enforcement agencies are required to get a court order toretain the information from arrests that do no ultimately turnout a conviction, the suit alleged, but the NYPD has failed to doso.

Over the last four years, the suit stated, the department hasmade 1.1 million arrests, of which more than 750,000 were formisdemeanors. [GN]

OXFORD UNIVERSITY: 1,000+ Students Join Suit Over Teacher Strikes-----------------------------------------------------------------Sally Weale, writing for The Guardian, reports that more than1,000 students have signed up to a lawsuit seeking compensationfor lost teaching hours during recent strike action by universitystaff, which could cost universities millions of pounds.

Students from institutions including Oxford, Cambridge, Bristoland Manchester have joined the case, which could become thelargest of its kind in the UK.

Fourteen days of teaching were lost to strikes on 65 campuses inthe UK in a dispute between university employers and theUniversity and College Union over plans to overhaul pensionsprovision for hundreds of thousands of university staff includinglecturers, researchers, librarians, technicians andadministrators.

Lawyers working on the case say universities saved millions ofpounds by withholding salaries from staff who were on strike.Although some institutions have suggested that money could bespent on general services for students, many students say theyare entitled to direct financial compensation.

Among them is Milan Vaskovic, 27, from Ottawa in Canada, who isin the second year of a two-year intensive law degree at theUniversity of Leicester, paid for out of savings and bank credit."We paid a certain amount for a number of lectures and as we arenot getting those lectures we should have received some sort ofadjusted tuition fee or refund," he said.

Mr. Vaskovic said there was "disarray" during the strike -- someweeks he was supposed to have 13 lectures and received onlythree. "The school and the administration knew these strikes werehappening and did very little to prepare us students. We didn'tknow which professors were part of the strike and which were not.We were walking about like headless chickens.

"Like any service, if you don't receive it or it is of poorquality, you should get your money back or at least some sort ofrefund."

Joanna Moss, from Wellingborough, Northamptonshire, a philosophystudent at Nottingham University, pays annual fees of GBP9,250through a student loan and estimates she lost 20 hours oflectures as a result of the strike. She has set up a petitiondemanding a minimum of GBP300 compensation per student. Morethan 100,000 students across the country have signed petitionsprotesting against the loss of lectures.

"I think it's unfair that we're paying a lot of money and notreceiving all our contact time," said Ms. Moss. "This is such abig thing that is being brushed to one side, and you only have tosee all of the comments from frustrated students on my petitionpage to illustrate how this has impacted on them -- as it's beenpretty much a whole term."

Shimon Goldwater -- shimon.goldwater@asserson.co.uk -- a seniorsolicitor at the law firm Asserson, which has set up a websitefor students who want to join the group action, said: "No otherservice provider would get away with charging for 25 weeks of aservice and cutting that to 22 with no price reduction. There isno question that universities owe students fair compensation. Ifthe class action is accepted, universities would pay out millionsof pounds."

Universities UK, the umbrella organisation representinguniversities, declined to comment but pointed to earlier adviceto students to go through their university's internal complaintsprocedure rather than resorting to lawyers. If a resolutioncannot be reached, complaints can be taken to the Office of theIndependent Adjudicator (OIA) in England and Wales.

Planned further strike action on campuses was suspended inApril after UCU members voted to accept an offer to reopennegotiations with employers over their pensions. [GN]

John Woodside bought a home in Madisonville, Louisiana for$170,000. He obtained a $157,712 mortgage from American NationalMortgage Co., Inc., which was immediately sold to Pacific UnionFinancial, LLC. Pacific Union currently services the mortgage.The mortgage agreement requires that Woodside insure his propertyagainst any hazards, casualties, and contingencies, includingfire, for which Lender requires insurance, and against floods.Additionally, if Woodside fails to obtain insurance, then theLender may do and pay whatever is necessary to protect the valueof the Property and Lender's rights in the Property, includingobtaining insurance.

Woodside brought this proposed class action lawsuit againstPacific Union. He alleges that Pacific Union breached theexplicit terms of the mortgage agreement, the implied covenantfor good faith and fair dealing, and its fiduciary duties when itselected a LPI policy that was significantly more expensive thanthe policy he had originally selected.

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows aparty to move for dismissal of a complaint for failure to state aclaim upon which relief can be granted.

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, apleading must contain a short and plain statement of the claimshowing that the pleader is entitled to relief.

To survive dismissal, a complaint must contain sufficient factualmatter, accepted as true, to state a claim to relief that isplausible on its face.

Mr. Woodside does not allege that Pacific Union has a right toimpose a lender-placed insurance policy.

Breach of Contract

Woodside contends that Pacific Union breached the explicitlanguage of the mortgage agreement, and breached the agreement'simplied covenant of good faith and fair dealing.

The Court has already determined that simply selecting a costlyLPI policy (when the contract authorizes it and the lenderdisclosed the amount to be charged), accepting commissions, andproviding (and charging for) coverage as soon as the borrowerselected coverage lapses does not constitute a breach of themortgage agreement. The additional claims do not persuade theCourt to find differently. It is not the lender's obligation toobtain a LPI policy from the insurer that the lender originallyselected it is entitled to select its own insurer.

Likewise, it is not the lender's obligation to price shop forcompetitive insurance policies. It is the borrower's obligationand responsibility to obtain insurance, and to seek a price-competitive option. But when they fail to take those steps, thelender does not act in bad faith for not investing the time andresources to secure the best deal for the borrower. BecauseWoodside has not alleged facts that support a finding thatPacific Union breached the contract, Pacific Union cannot as amatter of law be acting in breach of the implied covenant of goodfaith and dealing.

Fiduciary Duty

In Count II of the complaint, Woodside alleges that Pacific Unionbreached its fiduciary duty and misappropriated escrow funds.Pacific Union breached this duty by using and depleting theescrow accounts to pay for unnecessary and duplicative insuranceto generate additional profits. Pacific Union alleges that underLouisiana law, it does not owe the plaintiff a fiduciary duty.Again, the Court agrees.

Louisiana law provides, "No financial institution shall be deemedor implied to be acting as a fiduciary, or have a fiduciaryobligation or responsibility to its customers or to third partiesother than shareholders of the institution, unless there is awritten agency or trust agreement under which the financialinstitution specifically agrees to act and perform in thecapacity of a fiduciary." This Section is not limited to creditagreements and shall apply to all types of relationships to whicha financial institution may be a party.

The existence of an escrow relationship does not alterLouisiana's statutory requirements that a fiduciary duty onlyexists if explicitly created by a written agreement. BecauseWoodside does not allege that Pacific Union agreed to be afiduciary in any written document, the plaintiff fails to allegesufficient facts that a fiduciary relationship existed and thatPacific Union violated it.

Accordingly, the Defendant's motion to dismiss is granted. Theplaintiff's complaint is dismissed with prejudice.

A full-text copy of the District Court's March 22, 2018 Order andReasons is available at https://tinyurl.com/yaf5rysd fromLeagle.com.

Allen Woods and Keith Campbell, while awaiting trial at theFederal Detention Center in Philadelphia, seek to enjoin furtherenforcement of the Federal Detention Center's Visitation Policypreventing their children under sixteen from visiting them anddeclare the policy unconstitutional under the First and FifthAmendments.

At issue before the Court is whether it should allow the actionto proceed on behalf of a class of at least 100 absent pre-sentence inmates.

Mr. Woods and Mr. Campbell moved to certify a Class under FederalRule of Civil Procedure 23(b)(2) of all current and future pre-sentence inmates at the Federal Detention Center who are unableto see their child or children younger than sixteen years oldunder the Federal Detention Center's visitation policies,practices, and patterns.

The class period commences on October 5, 2017 and continues solong as Warden Marler persists in the unconstitutional policies,practices, and patterns.

Mr. Woods and Mr. Campbell satisfy the Rule 23(a) requirements.

The Class satisfies the numerosity requirement.

Mr. Woods and Mr. Campbell adduce evidence there are at least 100pre-sentence inmates who cannot visit with their children undersixteen because there policy only allows immediate family membersto accompany the children. Warden Marler also stipulates theClass meets the numerosity requirement.

The Court finds the class of at least 100 members meets thenumerosity requirement of Rule 23(a).

The Class satisfies the commonality requirement.

While the reasons each class member does not have an adequateimmediate family member to accompany their children differslightly, they all share the same injury. If no immediate familymember is suitable to accompany their child, their children undersixteen cannot visit them in the Federal Detention Center.

The commonality requirement is satisfied because the proposedclass members are subject to the same visitation policy andsuffer common factual and legal injury based on the policy'spreventing them to see their children under sixteen.

The Class satisfies the typicality requirement.

The Court finds Mr. Woods' and Mr. Campbell's claims are typicalof the Class because they arise from the same practice or courseof conduct; being Warden Marler's visitation policy preventingthem from visiting with their children under the age of sixteen.

The Class is adequately represented.

Mr. Woods and Mr. Campbell are adequate class representatives.The Court cannot identify interests of Mr. Woods or Mr. Campbellantagonistic to the Class. Warden Marler does not explain howthese conflicts of interest are possible. We are unclear how eachpre-sentence inmate's personal circumstances as to why theirchild's parent/legal guardian does not allow an immediate familymember handle visits could create a conflict with another pre-sentence inmate's legal rights.

Mr. Woods and Mr. Campbell are adequate representatives for theClass because they do not have interests antagonistic to theClass.

Class counsel is qualified, experienced, and able to conduct theproposed litigation.

These experienced attorneys are adequate as Class Counsel because(1) Attorney Baylson is qualified, experienced, and hasrepresented criminal defendants in jury trials; (2) AttorneyGeffen is qualified, experienced, and has twice served as classcounsel for Rule 23(b)(2) classes;, and, (3) Attorney Davy isqualified, experienced, and experienced in representing inmateschallenging policies in federal prisons. Warden Marler does notchallenge the adequacy of Plaintiffs' counsel.

Warden Marler misconstrues the nature of the Class' claim andrequested relief. The Class is not requesting Warden Marlerinvestigate the circumstances of every pre-sentence inmate tomake sure they can visit with their children under the age ofsixteen. The Class, instead, is requesting the visitation policybe declared unconstitutional as presently written and to then bere-written to expand the universe of adults who may accompanytheir children under sixteen.

The Class is cohesive under Rule 23(b)(2) because Warden Marler'sconduct is such that it can be enjoined or declared unlawful onlyas to all of the class members or as to none of them and thereare no significant individuals interests harmed by the inabilityto opt-out or creating manageability issues in the Class.

Accordingly, the Court certifies the proposed Class under Rule23(b)(2) of all current and future pre-sentence inmates at theFederal Detention Center in Philadelphia who, beginning onOctober 5, 2017, are subject to the Defendant's visitationpolicies, practices, and patterns affecting their ability toexpand the universe of responsible adults who can accompany theirchildren younger than sixteen on visits.

A full-text copy of the District Court's March 22, 2018Memorandum is available at https://tinyurl.com/y8ngpgrg fromLeagle.com.

Defendants own, operate, or control sports medicine practiceswhere Davis was employed as an X-Ray Technician, medicalassistant and phlebotomist where he worked for Defendants inexcess of 40 hours per week without appropriate overtimecompensation for the hours that he worked, notes the complaint.[BN]

PRIDE TRANSPORT: Settlement in "Jacob" Suit Has Final Approval--------------------------------------------------------------In the case, LINDA JACOB and CHRISTOPHER WATSON, individuals, onbehalf of themselves, and on behalf of all persons similarlysituated, Plaintiffs, v. PRIDE TRANSPORT, INC., a Corporation;Does 1 through 50, Inclusive, Defendants, Case No. 5:16-CV-06781-BLF (N.D. Cal.), Judge Beth Labdon Freeman of the U.S. DistrictCourt for the Northern District of California granted thePlaintiffs' motion for final approval of their class settlement.

On Feb. 22, 2018, the Court heard the motion by the Plaintiffs.Having considered the Joint Stipulation of Class ActionSettlement and Release and all papers filed and proceedings had,Judge Freeman granted the motion for final approval and themotion for attorneys' fees and costs.

The Parties have submitted their Settlement, which the Courtpreliminarily approved by its Order dated Oct. 17, 2017. Inaccordance with the Preliminary Approval Order, the Class Membershave been given notice of the terms of the Settlement and theopportunity to comment on or object to it or to excludethemselves from its provisions.

In the Order dated Oct. 17, 2017, the Court certified the Classfor settlement purposes, and now confirmed certification of theClass, which is defined as in the Agreement as all current andformer truck drivers who are or were employed as truck drivers byDefendant at any time during the period from May 31, 2012, toDec. 28, 2016, who performed any work in California and who werepaid on the basis of activity-based work

Pursuant to the Preliminary Approval Order, the Notice of ClassAction Settlement was sent to each class member. No ClassMembers filed written objections to the proposed settlement aspart of this notice process.

Judge Freeman ordered that the payment of the Settlement Paymentsbe made to the Class in accordance with the Agreement. Sheordered that (i) the payment of $3,562.50 to the California Laborand Workforce Development Agency; (ii) the payment of the feesand expenses of Simpluris in administrating the settlement, inthe amount of $25,000; and (iii) the payment requested by thePlaintiffs and the Class Counsel for an award of the EnhancementAwards and the Class Counsel attorneys' fees and costs be paidout of the Gross Settlement Amount in accordance with theAgreement.

Judge Freeman entered final Judgment in the Action, as defined inRule 58(a)(1), Federal Rules of Civil Procedure. She dismissedwith prejudice the Civil Action. Except for the one member ofthe Class (Gil Jose) who submitted a valid request for exclusion,the Released Claims of the Class Members and the Plaintiffs arereleased in accordance with the Agreement and these Class Membersare barred from prosecuting any of the Released Claims againstany Released Parties. She ordered the parties to comply with theterms of the Agreement.

A full-text copy of the Court's March 21, 2018 Order is availableat https://is.gd/J99oYh from Leagle.com.

That's the outcome of a $2.1 million wage-violation settlement ina case that recently wrapped up in federal court; it affects 922tipped employees who work or had worked for Primanti Bros.between Sept. 9, 2013 and Dec. 31, 2016 at Pennsylvania locationsas well as those in other states.

Former employee Chelsea Koenig filed a class-action lawsuit inU.S. District Court in September 2016, alleging that PrimantiBros. didn't pay her, along with other tipped employees --servers, bartenders and food runners -- the full minimum wage of$7.25 for every hour worked. The lawsuit claimed violations offederal and state wage laws.

Ms. Koenig was employed as a bartender from May 2012 throughSeptember 2013 at the Mt. Lebanon location, one of over 40 acrossPennsylvania, Ohio, Florida, Indiana, West Virginia, Maryland andMichigan.

In addition to Primanti's Corp., the lawsuit names Primanti'spresident and secretary David Head and corporate officers AndrewTaub, Demetrios Patrinos, James Chu and Nicholas Nicholas, amongother defendants.

According to the final judgment, former and current tippedemployees who worked at Primanti Bros. in Pennsylvania or anotherPrimanti's location from Sept. 9, 2013 through Dec. 31, 2016 --who have already filed claims -- will each receive a portion ofthe settlement. Ms. Koenig has also been awarded an additional$5,000.

The plaintiff's lawyer, Gerald D. Wells III of Connolly Wells &Gray, LLP in Philadelphia, said, "My co-counsel and I are pleasedthat the Court granted final approval to this settlement andappreciate that Primanti Bros. worked amicably to resolve theseclaims."

Assuming no appeals are filed in the next 30 days, payments willbe mailed out this summer. The payments come from thesettlement, minus attorney fees and reimbursement expenses.

Employees who are part of the settlement have claimed that theyare owed a total of $4.6 million, according to the settlementagreement. After fees, there will be a pot of $1.3 million todistribute among employees, ranging from $3.84 to $8,170.64. Ofthe 922 claimants, 673 worked in Pennsylvania.

Under state and federal law, restaurants can pay employees a lowwage -- $2.83 an hour in Pennsylvania -- compared to the minimumwage of $7.25 an hour. Employers, however, must make up thedifference if a worker does not earn at least $7.25 an hour aftertips are added.

According to the lawsuit, Ms. Koenig said she didn't recall herhourly wage ever having been raised above $2.83 an hour for anyday she worked at Primanti's, regardless "of how little tips sheearned or the type of work she performed."

The suit also states that Ms. Koenig spent 30 percent of her timedoing side work, such as cleaning stations, and not getting tips.If employees spend more than 20 percent of a shift doing sidework, they are to earn the full $7.25 an hour minimum wage.

"Since we first opened our doors in the Strip District 85 yearsago, Primanti Bros. has been committed to offering excellentcareer and employment opportunities for the people of Pittsburghand all communities that we serve," a Primanti Bros. spokespersonsaid in a statement. "We strongly believe that we have honoredthat commitment at all times, including by treating andcompensating our employees fairly and consistent with the law.We look forward to continuing to do that."

Primanti Bros. is not the first big-name restaurant in the statethat has not complied with tipping laws. In July, Philadelphia'saward-winning Zahav, co-owned by Pittsburgh native MichaelSolomonov, settled a class-action lawsuit filed by a formeremployee in which the restaurant paid 41 servers $230,000 -- theresult of servers having had to share tips with non-tippedemployees.

In New York, Shake Shack founder and hospitality spokesman DannyMeyer settled a 2015 class-action tipping lawsuit at New YorkCity stalwart Gramercy Tavern for $695,000, before the restaurantswitched to no-tipping. And one of the largest settlements inthe past decade was for $2 million for retaining service charges,failure to pay overtime and tip pool mismanagement at Blue Hillat Stone Barns, chef-owner Dan Barber's restaurant in upstate NewYork. Over 250 employees shared the settlement.

Food and Beverage magazine reported that the U.S. Department ofLabor has found tip-credit violations in more than 1,500 casesresulting in nearly $15.5 million in back wages over the past fewyears. [GN]

PROTEIN SOLUTIONS: Class Action Mulled Following Odor Complaints----------------------------------------------------------------Lisa Olliges, writing for KOAMTV, reports that as the city ofJoplin drafts an odor ordinance, a Neosho based law firm tries todrum up support for a class action lawsuit.

Its goal is to get companies to remediate problems and compensateresidents who can't sell or rent or truly enjoy their homes

She was the first to complain about odors and said they've beenaround at least five years. But she signed a complaint thatresulted in the Department of Natural Resources citing thatcompany twice just last year.

Now, she, like four thousand other Joplin residents received aletter from Neff and Day attorneys about a possible class actionlawsuit against another industry, Protein Solutions. Terry Neffcontends residents home values are being impacted along with theability to enjoy their homes.

Joyce said that's true. "We can't use out back yard most of thetime." And she added, "My dogs come in stinking all the time."

She said complaints don't readily get answered. "I have screamedand hollered about this. It does John Q. Public no good untilthe city finally decides the city has an odor problem."

In an emailed statement, Protein Solutions says: "We utilizestate-of-the-art equipment to mitigate odor and employ bestpractices to ensure our plant is properly controlled. Proteinsolutions is proud to state that we operate within all state andlocal regulations."

Terry Neff said the majority of complaints the law firm hasreceived focus on Protein Solutions but if more respondents haveconcerns about other companies, there is a possibility of addingother industries to the lawsuit. But for now one company is thefocus of the letter campaign.

Ms. Johnson said, "There was one time, I was heading towardsRangeline. I physically gagged. It was really bad." She added,"It concerns me that we've spent all this time and energy andmoney on making Joplin beautiful which is great, but doesn't do awhole lot if it smells terrible."

A Department of Natural Resources regional manager, Cindy Davies,said other companies have been cited more than Protein Solutions.

Ms. Davies explained, "Heartland Pet Foods were cited three timesin the last couple years.

Protein Solutions has had problems in the past but we haven'tcited it since 2015."

Ms. Sherwood-May is willing to be part of a class action suit butshe's not sure it's just one company to blame. And that's partof the challenge for the city of Joplin as well. Healthdepartment director Dan Pekarek said it's difficult to determinewho is the culprit of the bad smells.

Mr. Pekarek explained, "With odor it can be a bit challenging.You have to isolate, if you can, what is the source." He added,"You can't just go out and say you're it. You're gonna have togo, we have multiple entities all in the same area. We're gonnahave to go out and literally check around each one of thoseentities to see if one of them or all of them might be violatingthe city ordinance at the same time."

He also said weather has an impact. "Weather doesn't cause theodor but certainly impacts how bad it's gonna be, where it'sgonna be. And some of those days, how trace it."

The city uses the same nasal ranger as used by DNR to gauge odorintensity. If an odor can be smelled at a seven to one ratio ofair dilution, it is a violation of state law."

Mr. Pekarek drafted an odor ordinance that is being tweaked bythe city attorney and city manager to be presented to the citycouncil. It mimics state DNR regulations. Mr. Pekarek said, "Wedon't want to do something that's not gonna stand up in court."

Mr. Pekarek said the city has limited enforcement capability.Cases would go to city court where a judge's fine is usually amaximum of five hundred dollars. So, he urges residents to callDNR.

"DNR doesn't want a complaint from us. We get complaints andwe'll forward them to DNR but for that to be an officialcomplaint, it's supposed to come from the actual citizen."

Jennifer has complained to the city thinking that was her bestroute but is willing to try another avenue. "If the city wouldpost something about how to complain to the DNR, that would beawesome."

Ms. Davies with the DNR said residents can call a local number tofile complaints and report odors for investigation. That numberis 417- 891- 4300.

She said, "We will write up a concern and get there as quickly aspossible to investigate." And suggested citizens provide,"Information on where they're located in conjunction with thefacility (ies) they believe are causing the issue. It's helpfulto us if they notice a pattern of odor occurring, days of week,times of day, are helpful to us. If there are distinctive odorssomething distinctive such as, it has burning smell or smellslike wastewater. If there's something distinctive it can helpdirect us to where its coming from." [GN]

PROVIDENCE HEALTH: Court Narrows Claims in "Johnson" ERISA Suit---------------------------------------------------------------The United States District Court for the Western District ofWashington, Seattle, granted in part and denied in partDefendants' Motion to Dismiss the case captioned JENNY JOHNSON,individually and on behalf of a class of persons similarlysituated, and on behalf of the Providence Health & Service 403(b)Value Plan, Plaintiff, v. PROVIDENCE HEALTH & SERVICES, et al.,Defendants, Case No. C17-1779-JCC (W.D. Wash.).

ERISA imposes duties of loyalty and prudence on the fiduciariesof employee pension benefit plans. In two counts, the Plaintiffclaims that the Defendants breached their fiduciary duties to thePlan. First, the Plaintiff asserts the Defendants breached theduties of prudence and loyalty by offering investment optionsthat carried excessively high fees instead of lower-costalternatives (Investment Management Claims). Second, thePlaintiff asserts the Defendants breached the duties of prudenceand loyalty based on the recordkeeping fees paid to Fidelity,which she asserts were excessive and unreasonable (RecordkeepingClaims).

Under Rule 12(b)(1), a complaint must be dismissed if theplaintiff lacks Article III standing.

Rule 12(b)(6)

Under Rule 12(b)(6), a complaint should be dismissed if it failsto state a claim upon which relief can be granted. To survive amotion to dismiss, a complaint must contain sufficient factualmatter, accepted as true, to state a claim for relief that isplausible on its face.

Rule 12(b)(1) Motion to Dismiss for Lack of Standing

The Defendants argue that the Plaintiff lacks standing to assertthe majority of her Investment Management Claims because she didnot suffer a particularized injury with regard to funds in whichshe never invested.

The Plaintiff counters with two standing theories. First, sheargues that the Ninth Circuit applies a standing analysis inclass actions that does not require a named plaintiff todemonstrate the exact same injury as other class members.

Second, since the Plaintiff brings suit on behalf of the plan,her alleged injury must simply relate to defendant's managementof the Plan as a whole.

The Defendants' arguments to the contrary deal more with theissue of the Plaintiff's adequacy as the named-plaintiff aquestion reserved for class certification than her failure toallege a concrete, injury-in-fact. Indeed, the Defendants concedein their opening brief that the Plaintiff has standing withregard to investment management fees related to the Freedom Fund.

The Defendants shift their argument and suggest that thePlaintiff lacks standing because her allegations regarding theFreedom Fund fail to state a claim upon which relief can begranted. But the Defendant's attack on the merits of thePlaintiff's claim represents a distinct question from thePlaintiff's standing to assert the claims of other class members.

The Court concludes that the Plaintiff has standing to assert herInvestment Management Claims regardless of whether she personallyinvested in the mutual funds held by unnamed class members.

The Defendants' motion to dismiss for lack of standing istherefore denied.

Rule 12(b)(6) Motion to Dismiss -- Duty of Prudence

ERISA requires that fiduciaries act with the care, skill,prudence, and diligence under the circumstances then prevailingthat a prudent person acting in a like capacity and familiar withsuch matters would use in the conduct of an enterprise of a likecharacter and with a like aim. Plan fiduciaries must not only actprudently when selecting investments but have a continuing dutyto monitor and remove imprudent ones.

To survive a motion to dismiss, an ERISA plaintiff need notallege facts that directly address the process by which the Planwas managed. Instead, it is enough for Plaintiff to makecircumstantial allegations that allow the Court to drawreasonable inferences that a fiduciary's process in selectinginvestments was imprudent.

Investment Management Claims (Count 1)

The Plaintiff's primary allegation in support of her InvestmentManagement Claims is that the Defendants selected and failed toremove at least 17 mutual funds in a high-cost share class(retail shares) when identical lower-cost share classes(institutional shares) were available.

Here, the Plaintiff has made plausible allegations, that whentaken as true, allow the Court to reasonably infer that theDefendants were imprudent in their selection and monitoring ofcertain retail shares of mutual funds. This specifically includesthe Freedom Fund that the Plaintiff invested in, which in 2016began offering institutional shares (Z6 shares) that were atleast 10 basis points less than the available K shares. The Planhad over $176 million invested in the Freedom Fund K shares atthe end of 2016. Courts in this circuit have denied motions todismiss where similar allegations were made

This is not to say the Plaintiff will succeed on her claim thatthe Defendants' investment management decisions were imprudent.On a more developed record, it may well be the case that theDefendants acted prudently in investigating and deciding not tooffer certain institutional shares of the mutual funds identifiedby the Plaintiff. At the pleading stage, the Court concludes thatthe Plaintiff has alleged sufficient facts to make her claimsplausible.

The Defendants' motion to dismiss Plaintiff's InvestmentManagement Claims as pled in Count 1 is denied.

Recordkeeping Claims (Count 2)

The Plaintiff makes several allegations to support her claim thatthe Defendants violated the duty of prudence with respect to thecompensation Fidelity received as the Plan's recordkeeperOther allegations in the complaint regarding Fidelity'srecordkeeping compensation are either conclusory or contradictedby judicially noticeable documents. The Plaintiff's allegationthat Fidelity did not begin rebating revenue sharing until 2016,is directly contradicted by the 2012 amendment to the feeagreement that instituted such rebating. The Plaintiff'sallegations regarding the total annual recordkeeping feesFidelity earned are simply incorrect when compared with theannual fee disclosures that document those figures.

The Defendants' motion to dismiss Plaintiff's RecordkeepingClaims as pled in Count 2 is granted.

Rule 12(b)(6) Motion to Dismiss -- Duty of Loyalty

Investment Management Claims (Count 1)

The crux of the Plaintiff's breach of loyalty claims are that theDefendants' investment management decisions benefited Fidelity atthe expense of plan participants. The Plaintiff alleges that theDefendants' failure to select lower-cost share classes for thePlan demonstrates that either the Defendants intentionallyrefused to move the Plan to a cheaper share class, or that itfailed to consider the size and purchasing power of the Plan whenselecting share classes.

Some of the Fidelity investment products that were offered, forexample the Freedom Fund, could have benefited Fidelity in theform of a higher expense ratio at the cost of Plan participants.While the complaint provides no direct evidence of self-dealingor preferential treatment for Fidelity, the inclusion andretention of various Fidelity investment products iscircumstantial evidence that Defendants did not act with an eyesingle toward beneficiaries' interests.

The Defendants' motion to dismiss the Plaintiff's breach ofloyalty claim as pled in Count 1 is denied.

Recordkeeping Fees (Count 2)

The Plaintiff alleges that the Defendants breached the duty ofloyalty based on its recordkeeping agreement with Fidelity. ThePlaintiff relies on the same factual allegations that she offeredin support of her breach of prudence claim in count 2.

Having determined that the Plaintiff failed to plausibly allege abreach of prudence in regard to the Defendants' recordkeepingagreement with Fidelity, the Court finds that the Plaintiff hasfailed to plausibly allege a breach of the duty of loyalty basedon the same conduct. Therefore, the Defendants' motion to dismissthe Plaintiff's claim for breach of the duty of loyalty as pledin Count 2 is granted. The Court grants Plaintiff leave to amendher complaint in order to cure these deficiencies.

A full-text copy of the District Court's March 22, 2018 Order isavailable at https://tinyurl.com/yb4arzn6 from Leagle.com.

ROYAL DUTCH: Must Face Class Action Over Lease Bonuses------------------------------------------------------Keith Goldberg, writing for Law360, reports that a Pennsylvaniafederal judge on April 20 sided with landowners in a class actionalleging a Royal Dutch Shell unit failed to pay themcontractually obligated bonuses on oil and gas leases, saying thedocuments exchanged between the company and landowners inbrokering the leases constituted an enforceable contract.

SCI DIRECT: Court Denies "Romano" Class Certification-----------------------------------------------------In the case, NICOLE ROMANO and JONATHAN BONO, individually and onbehalf of all others similarly situated, Plaintiffs, v. SCIDIRECT, INC.; and DOES 1-50, inclusive, Defendants, Case No.2:17-cv-03537-ODW (JEM) (C.D. Cal.), Judge Otis D. Wright, II ofthe U.S. District Court for the Central District of California(i) granted in part and denied in part the Defendant's Motion forSummary Judgment; (ii) denied as moot the Plaintiffs' Motion forConditional Certification under the Fair Labor Standards Act("FLSA"); and (iii) denied without prejudice the Plaintiffs'Motion for Class Certification under Rule 23(b).

Romano and Bono allege that the Defendant misclassified them, andthe national class they seek to represent, as independentcontractors rather than employees. As a result of thismisclassification, the Plaintiffs allege they are entitled todamages under the California Labor Code, the FLSA, and thePrivate Attorney General Act ("PAGA"), and damages and injunctiverelief under California's Unfair Competition Law ("UCL").

Romano filed the lawsuit in Los Angeles Superior Court on April6, 2017, on behalf of herself and other similarly situatedemployees. The Defendant removed the case on May 10, 2017,claiming that the Court had subject matter jurisdiction under 28U.S.C. Section 1332(c)(1) and the Class Action Fairness Act("CAFA").

Romano moved for leave to file an amended complaint in order toadd Bono as a class representative and Plaintiff, and the Courtgranted her motion. The Defendant moved to dismiss thePlaintiffs' First Amended Complaint for failure to state a claim.Instead of opposing the motion, the Plaintiffs filed a SecondAmended Complaint, thus mooting the Defendant's Motion. TheDefendant then moved to dismiss the Plaintiffs' Second AmendedComplaint, which the Court granted with leave to amend.

On Jan. 18, 2018, the Plaintiffs moved (1) to certify aCalifornia sub-class of current and former ISRs to pursue theCalifornia-law claims under Federal Rule of Civil Procedure 23(b)and (2) for conditional certification of a nationwide class ofcurrent and former ISRs to pursue the FLSA claims.

On Feb. 7, 2018, he Defendant moved for summary judgment on allof the Plaintiffs' claims, arguing in the alternative that, evenif it should have classified them as employees, ISRs qualify as"outside salespersons" who are exempt from various requirementsunder California and federal law, including those mandatingovertime, minimum wage, and meal and rest breaks. The Defendantclaims that granting its Motion for Summary Judgment would renderthe Plaintiffs' class certification motions moot. The Courtheard oral argument from both parties on all three pendingmotions on March 19, 2018.

Judge Wright granted in part the Defendant's Motion for SummaryJudgment and finds that the Defendant has established that evenif the Plaintiffs were employees, and not independentcontractors, they would qualify under the "outside sales"exemption of the California Labor Code and FLSA. Accordingly, hedismissed with prejudice the Plaintiffs' claims for minimum wage,overtime, regular wage, meal period, rest period, and waitingtime penalties under the California Labor Code and thePlaintiffs' overtime claim under the FLSA. He also dismissed thePlaintiffs' corresponding claims under the UCL and PAGA for thesealleged violations.

As to the Plaintiffs' FLSA claims, the Judge finds that the casesthe Plaintiffs cite in support of their argument are irrelevant.And, in the other case they, Cummings v. Cenergy Int'l Servs.,the Plaintiffs asserted their claim for declaratory relief thatthe Defendant violated the FLSA under the Declaratory JudgmentAct, not the FLSA itself. Therefore, the Judge dismissed thePlaintiffs' FLSA claims in their entirety and denied as moot thePlaintiffs' pending Motion for Conditional Certification underthe FLSA.

Because the Plaintiffs have not pleaded an independent cause ofaction under Section 2802(a), the Judge holds they do not have astandalone claim for a violation under Section 2802. And eventhough the outside sales exemption applies to the Plaintiffs,their claim under Section 226(a) survives. Neither partyaddressed this possibility in their briefing, but a number ofdistrict courts in this circuit have held that even outside salesemployees are entitled to itemized wage statements. Therefore,the Plaintiffs' claim for failure to provide accurate itemizedwage statements under Section 226(a) survives summary judgment.

As a result of his finding that the outside sales exemptionapplies, Judge Wright holds that most of the Plaintiffs' PAGAclaims must be dismissed, because they relate to the failure topay overtime and minimum wage and to provide meal breaks and restperiods. He finds that (i) the Plaintiffs cannot proceed with aPAGA claim under Section 2802; (ii) the Plaintiffs' PAGA claimunder Section 226.8 for willful misclassification survivessummary judgment; and (iii) the Plaintiffs' claims under Section226(a) for failure to provide accurate wage statements survivesummary judgment.

Because the Plaintiffs' claim for inaccurate wage statementsunder Section 226(a) survives summary judgment, Judge Wrightholds that the Plaintiffs may still maintain a claim under theUCL for a violation of that statute. They may proceed with theirUCL claim only as it relates to the Defendant's alleged violationof Section 226(a). He dismissed the remainder of the Plaintiffs'UCL claims.

The Plaintiffs seek to certify a class of all persons who workedfor the Defendant in California, as an ISR, who were, at any timewithin four years of the filing of the Complaint, classified asan independent contractor. The Plaintiffs' only remaining claimsfor which they seek certification are those related to theDefendant's failure to provide accurate itemized wage statements.

Because the Judge must find that a proposed class is bothascertainable and numerous before granting certification, whichhe cannot do at this time, he declined to address the issues ofcommonality, typicality, and predominance, and denied thePlaintiffs' Motion for Class Certification, without prejudice.Judge Wright ordered the parties to meet and confer and submit aproposed briefing schedule for class certification no later thanApril 16, 2018.

A full-text copy of the Court's March 21, 2018 Order is availableat https://is.gd/ewSa16 from Leagle.com.

SHERWIN-WILLIAMS CO: "Thompson" Suit Alleges Warranty Violations----------------------------------------------------------------Sylvia Thompson, on behalf of herself and all others similarlysituated v. The Sherwin-Williams Company and The Sherwin-WilliamsManufacturing Company USA, Case No. 1:18-cv-10591 (D. Mass.,March 28, 2018), is brought against the Defendants for breach ofexpress warranty and for violation of the Magnuson-Moss WarrantyAct.

The Plaintiff alleges that the Defendants manufactured a numberof paints and coatings, which include SW Duration, SW Deckscapes,and SW Wood Primers. Each of the Defendants, as affiliates andjoint ventures, falsely advertised them to Plaintiff andconsumers as being suitable for certain uses and superior toother manufacturers' products.

Sylvia Thompson is a resident and citizen of the State ofFlorida. She purchased Sherwin Williams products in Florida,Massachusetts, and Maine and has standing to pursue the claims ofthis class.

The Sherwin-Williams Company is an Ohio corporation with itsprincipal place of business in Cleveland. The Sherwin-WilliamsCompany is a multinational company with subsidiaries thatmanufacture and market purportedly high-performance coatings,sealants, and specialty chemicals, primarily for maintenance,repair, and improvement applications, including Duration andDeckscapes.

The Sherwin-Williams Manufacturing Company is a subsidiary ofDefendant The Sherwin-Williams Company and manufacturesprotective paints and coatings for home and industry use. [BN]

ST. LOUIS RAM: "McAllister" Remanded to Missouri State Court------------------------------------------------------------In the case, RONALD McALLISTER, Plaintiff, v. THE ST. LOUIS RAMS,LLC, Defendant, Nos. 4:16-CV-172 SNLJ, 4:16-CV-262, 4:16-CV-297,4:16-CV-189 (E.D. Mo.), Judge Stephen N. Limbaugh, Jr. of theU.S. District Court for the Eastern District of Missouri, EasternDivision, remanded the case to the Circuit Court for the City ofSt. Louis, Missouri, and denied as moot the Defendants' motion todismiss.

The Plaintiffs filed their first complaint in state court, andthe Defendant removed the case to the Court citing diversityjurisdiction generally and, in the alternative, "minimaldiversity" under the Class Action Fairness Act ("CAFA"). ThePlaintiff filed a First Amended Complaint ("FAC") and with it amotion to remand to state court. The FAC attempted to clarifythat the class was comprised only of Missouri citizens, renderingany "minimal diversity" arguments inaccurate for CAFA purposes.He also argued that even if CAFA jurisdiction were present, thenthe "local controversy exception" applied to require remandbecause more than two-thirds of the Plaintiff class are Missouricitizens.

The Defendants responded that the original petition createdminimal diversity because the class definition used the term"Missouri resident," leaving open the possibility that a non-Missouri citizen who was also a Missouri resident could be amember of the class and thus provide diversity of citizenship.They argued that the Court should not consider the FAC, whichrevised the class definition to include only Missouri citizenswho were Missouri citizens at the time of the petition's filing.

The Plaintiffs replied and pointed out that the Defendants hadnot met their burden of proof to establish CAFA jurisdictionbecause the Defendants had not identified any person who createdminimal diversity. The Defendants sought and received permissionto file a Sur-Reply with attached affidavits from Missouriresidents who were not Missouri citizens. The Court did notconsider the affidavits and remanded the matter to state court,but the Eighth Circuit subsequently instructed the Court toconsider the affidavits before reaching a ruling on the remandissue.

On remand from the Eighth Circuit, the Plaintiffs filed a Sur-Response urging the Court to consider its FAC definition of theclass and citing Ninth Circuit law. The Defendants responded tothe Sur-Response. The Court denied the motion to remand and heldthat the FAC could not be considered and that minimal diversityexists.

The Plaintiffs requested reconsideration of the Court's orderbecause, they say, the Court did not consider the "localcontroversy exception" or the "home state exception" to CAFAjurisdiction. The Defendants responded that the Plaintiffsabandoned those arguments because they had not been raised sincethe Plaintiffs' very first brief on the motion to remand. ThePlaintiffs responded that they had not abandoned those arguments;rather, those arguments were only relevant if the Court found"minimal diversity" under CAFA, which he disputed from thebeginning. The Plaintiffs further note that because it was theDefendants' burden to establish CAFA jurisdiction, the burden wasnot on the Plaintiffs to prove the exceptions were effectiveunless the Defendants met their burden.

The Court's Memorandum and Order held that Defendants hadestablished each of the three CAFA jurisdictional elements: (1)minimal diversity among the parties (that is, any class memberand any defendant are citizens of different states); (2) at least100 class members; and (3) an amount in controversy of more than$5 million. It also held that the class definition in the firstpetition, not the FAC, applied because the pre-removal complaintis the relevant document for determining whether removal wasappropriate.

The Plaintiffs argued that, in light of the Court's conclusionthat the CAFA jurisdictional elements had been established, theCourt should have applied the local controversy exception to thefacts of the case. Under the local controversy exception, adistrict court must decline to exercise jurisdiction over a classaction (1) in which more than two-thirds of the class members inthe aggregate are citizens of the state in which the action wasoriginally filed, (2) at least one significant defendant is acitizen of the state in which the class action was originallyfiled, (3) the principal injuries were incurred in the state inwhich the action was filed, and (4) no other class actionalleging similar facts was filed in the three years prior to thecommencement of the current class action.

As the Court recognized, there appears to be no doubt that thesecond, third, and fourth factors for the local controversyexception are met in the case. It finds that the parties'dispute pertains to the first factor, whether more than two-thirds of the class members are Missouri citizens. The Courtallowed the Plaintiff jurisdictional discovery regarding statecitizenship.

The Judge says the Plaintiffs may take a random sample ofpotential class members, ascertain the citizenship of each on thedate the case was removed, and extrapolate to the class as awhole. If the sample yields a lopsided result, the outcome isclear without the need for more evidence. If the result is closeto the statutory two-thirds line, then do more sampling and hirea statistician to ensure that the larger sample produces areliable result.

The Plaintiffs conducted discovery and retained an expert tosubmit an expert report regarding the citizenship of the proposedclass. The Defendants hired their own expert, who submitted hisown expert report and criticized the Plaintiffs' expert'smethodology.

The Plaintiffs retained Dr. Charles Cowan as their expert instatistics and survey design and implementation. Dr. Cowan tooka random sample of potential class members and ascertained theircitizenship -- or domicile -- that is, where the person (1)resides, and (2) intends to remain. His survey asked putativeclass members whether they made a relevant purchase from theDefendants during the class period, whether they resided inMissouri when they made their purchase and continued to reside inMissouri through the time the case was filed, and whether theyintended to continue to live in Missouri. He received 107responses and determined 93 were Missouri citizens. Thus 86.7%of putative class members had Missouri citizenship. Dr. Cowanalso determined this was a random and statistically significantsample.

Judge Limbaugh will not go into the details of the parties'statistical debates. Although the Defendants go to great lengthsto discredit Dr. Cowan's survey, he finds Dr. Cowan's analysisand opinion persuasive, even in the face of the Defendants'arguments to the contrary. Ultimately, even accepting theDefendants' criticisms, Dr. Cowan's opinion results in finding aMissouri citizenship rate significantly larger than two-thirds ata 95% confidence level.

Again, the Judge finds that the Defendants do not suggest thatDr. Cowan is not qualified as an expert in these matters, nor isthere any apparent basis for them to do so. Dr. Cowan's opinioneasily supports that more than two-thirds of the Plaintiffs'class comprises Missouri citizens. The Plaintiffs' burden ofproof is by a "preponderance" -- or more than 50% -- of theevidence. He finds that the Plaintiffs' approach was disciplinedand reliable so as to meet this burden.

Accordingly, Judge Limbaugh remanded the case to the CircuitCourt for the City of St. Louis, Missouri and denied as moot theDefendants' motion to dismiss.

A full-text copy of the Court's March 21, 2018 Memorandum andOrder is available at https://is.gd/b9bIb0 from Leagle.com.

STARBUCKS CORP: May Have to Pay "Seven Figures" if Wage Suit OK'd-----------------------------------------------------------------Michelle Lodge, writing for TheStreet, reports that StarbucksCorp. could end up paying "seven figures or more," if a wage-and-hour dispute with an ex-employee in California leads to a classaction suit involving thousands of current and former employees,Grant Alexander, a Los Angeles attorney who represents employersin wage-and-hour disputes, told TheStreet on April 24.

The six-year-old case of Troester v. Starbucks Corp. was set fororal arguments on May 1 before the California Supreme Court. IfTroester prevails, his attorney Shaun Setareh, a partner withSetareh Law Group in Beverly Hills, told TheStreet on April 24that he would file to certify the class of affected Starbucksworkers, which he estimates to be in the thousands, with theCentral California Court. The plaintiff Douglas Troester, aformer shift supervisor at a Starbucks in Los Angeles County, issuing the company for lost wages.

A ruling in favor of Mr. Troester "has the potential to open up awhole new area of wage-and-hour disputes" for retail and othercompanies throughout the state, said Alexander, a partner at thefirm Alston & Bird, who is not involved in the case. "It's adeep breath before the plunge. Everyone is watching to see whatthe court decides."

If Mr. Troester prevails, Alexander added, many Californiaemployers may need to assess whether they, like Starbucks, arevulnerable and owe employees for unpaid work.

In Mr. Troester's suit, he alleges that the company required himto clock out before completing tasks mandated by the company.Those included a store closure procedure to transmit sales,profit and loss and inventory data to Starbucks headquarters. Inaddition, he alleges that he routinely wasn't paid for therequired tasks of locking the store and escorting coworkers totheir cars, which he maintains the company required as part ofits safety guidelines. The plaintiff alleges that these taskstook four to 10 minutes daily and that during the 17 months heworked for the company, he racked up some 12 hours and 50 minutesof unpaid closing-shift time, which is a full day-and-half inunpaid minimum wages. The period covers mid-2009 to October2010. Mr. Setareh said that Mr. Troester could very well havebeen fired had he not performed the off-the-clock tasks outlinedin the brief.

Central to the case is whether the federal Fair Labor StandardAct's de minimis doctrine, as stated in the U.S. Supreme Courtcase from 1946, Anderson v. Mt. Clemens Pottery Co., and Lindowv. United States from 1984, applies to unpaid wages undersections of the California Labor Code. Both cases deal withinterpretation of what constitutes compensable wages foremployees. In such cases, plaintiffs claim that all work for acompany should be paid, whereas the defendants take the positionthat the time and amount are so small that it can be burdensomefor employers to track it.

The back wages that Mr. Troester is claiming is small, $120.Mr. Troester worked for Starbucks at a minimum wage of around $8an hour. However, if the case covered the same ground forcurrent and former employees of Starbucks as a class ofthousands, the settlement, interest and attorney and court fees,add up to a high figure.

"Although Starbucks is claiming that the amount is so miniscule,the company is nickel-and-diming hardworking Americans, whilefattening the wallets of corporate America," said Mr. Setareh.He added that because for many American workers, an extra $100 orso, makes a difference in whether they can feed their families,the amount is meaningful, not minimal.

With 2,874 Starbucks in California, it has the most of the coffeeretailer's stores of any state: 2,001 are company-owned and 873are licensed by Starbucks.

After Mr. Troester left the company, Starbucks changed its policyand now pays employees for the tasks in dispute by Mr. Troester.Starbucks declined to comment on why it made the policy change,the Troester case or other company details, saying it's becauseit is in the "middle of litigation." Starbucks' attorney Rex S.Heinke, of Akin Gump in Los Angeles, declined to return a call toTheStreet.

Mr. Troester originally filed his suit in 2012 in Los AngelesSuperior Court. From there, Starbucks filed a motion for summaryjudgment in Central California Court, which it received.Mr. Troester appealed the summary judgment in the Ninth CircuitFederal Court, then requested that it be heard by the CaliforniaSupreme Court, because he and his attorney don't think the deminimus defense applies to California minimum-wage claims.

If you are African American, Black, Asian, Native Hawaiian orother Pacific Islander and you obtained an auto loan to purchasea vehicle financed by Toyota Motor Credit Corporation betweenJan. 1, 2011 and Aug. 1, 2016, you may be entitled tocompensation from the interest rate discrimination class actionsettlement.

The Toyota Motor Credit settlement fund was established in 2016after an investigation by the CFPB and DOJ found that Black andAsian/Pacific Islander buyers were charged an average of $100 to$200 more on their loans than white buyers. Thousands of buyerswere reportedly affected by these discriminatory dealer markups.

The investigation found that Toyota Motor Credit's discretionarypricing and compensation policies resulted in discriminatoryoutcomes. The CFPB and DOJ did not find that Toyota Motor Creditintentionally discriminated against Black and Asian/PacificIslander consumers.

Notice of the Toyota Motor Credit Corporation settlement wasmailed to eligible buyers in December 2017.

Toyota Motor Credit Corporation has neither confirmed nor deniedthe allegations but agreed to establish a settlement fund andchange its policies to ensure it does not discriminate againstloan applicants in credit transactions on the basis ofcharacteristics like race and national origin.

"Toyota's reforms will level the playing field to ensure that alleligible borrowers -- regardless of their race or national origin-- can sign auto loans with fair terms and reasonable interestrates," Principal Deputy Assistant Attorney General Vanita Gupta,head of the Civil Rights Division, said.

"While dealerships deserve fair compensation for the valuablecustomer service they provide, federal law protects consumersagainst higher price markups simply because of what they looklike or where they come from. We commend Toyota for crafting anew compensation system that strikes an appropriate balance fordealers and consumers."

Who's EligibleYou are eligible for a settlement payment under the followingconditions:

You must have received an auto loan to buy a vehicle financed byToyota Motor Credit Corporation between Jan. 1, 2011 and Aug. 1,2016;

At least one buyer on the contract is African American, Black,Asian, Native Hawaiian, or other Pacific Islander; andThe buyer must have been identified by the government as havingbeen overcharged by Toyota Motor Credit Corporation.

Potential AwardVaries

Proof of PurchaseIf you received notice of the Toyota Motor Credit Corporationsettlement, you can submit a claim online by entering the uniqueidentifier listed on the letter and your Toyota Motor CreditAccount Number.

Consumers who submit the Settlement Eligibility Form must provideeither the last four digits of their Social Security number ortheir Toyota Motor Credit Corporation Account Number.

Less than a decade ago, outside of calling a cab company andhoping for the best, the notion of reliably getting from 'here tothere' via a few button presses on a cell phone was unthinkable.Things have changed. Uber -- the now-ubiquitous application thatallows patrons to hail various styles of ride -- has whollydisrupted the transportation service industry. According to thelatest estimates, over 160 thousand Uber drivers dot the roads.Those drivers provide approximately 40 million rides each month,and the company's 2017 valuation reached $69 billion. The term"Uber" has become a verb (e.g., "I'll Uber there") analogous to"just Google it" or "xerox the document."

The Lawsuit: Razak v. Uber Technologies, Inc.

As most endeavors where the customer base grows exponentially andthe company's economic value skyrockets, Uber became a ripetarget for litigation. For example, in 2016, three individualsbrought suit against Uber in Pennsylvania state court. ThePlaintiffs sought to certify a putative class of all persons whoprovided limousine services for UberBLACK via the Uberapplication in Philadelphia, Pennsylvania. The matter wasquickly removed to federal court and proceeded before JudgeMichael Baylson in the Eastern District of Pennsylvania. Razak etal. v. Uber Technologies, Inc., et al., Cause No. 16-573 (E.D.Pa.).

Plaintiffs' allegations were relatively straightforward. Inshort, they alleged (i) they were non-exempt 'employees' of Uberwithin the meaning of the FLSA and, accordingly, qualified forovertime pay, and (ii) all time spent "Online" (i.e., logged intothe Uber App and capable of accepting customer rides) forUberBLACK over 40 hours in a given week entitled them to overtimepay. For its part, Uber positions itself as a technology-serviceprovider and explicitly not a transportation company. Statedanother way, Uber views drivers as 'customers' who may use theApp to provide transportation to individuals requesting rides viathe platform. Drivers then pay a service fee to Uber on a per-ride basis.

Independent Contractors or Employees?

Certain procedural elements of the case are particularlynoteworthy. Uber unsuccessfully attempted to halt the case atthe pleading stage, filing motions to dismiss on the grounds thatPlaintiffs failed to allege sufficient facts to qualify them as'employees' rather than 'independent contractors' and,additionally, that Plaintiffs' allegations of time spent Onlinein the Uber App were insufficient to state a claim for overtimepay under the FLSA. Judge Baylson denied Uber's attempts todismiss the case on the pleadings, but ordered expediteddiscovery and subsequent briefing on the limited issue of whetherPlaintiffs' Online time qualified as compensable work time underthe FLSA.

After completing expedited discovery, Uber moved for judgment onthe sole issue of whether Plaintiffs' Online time wascompensable. Notably, for the purposes of that motion only, Uberassumed that the Plaintiffs qualified as 'employees' and Uber wastheir 'employer' under the FLSA. Judge Baylson denied Uber'smotion, finding that the time Plaintiffs spent logged into theUber App could be considered "predominately for the benefit ofthe employer rather than the employee." Importantly, the denialwas without prejudice to Uber's ability to refile for summaryjudgment at the completion of discovery because, according toJudge Baylson, "the compensability question . . . may beinextricably intertwined with the threshold employee versusindependent contractor question." Consequently, the stage was setfor Uber's summary judgment motion on the issue of whetherUberBLACK drivers are, in fact, employees or independentcontractors.

The Ruling

Predictably, Uber filed for summary judgment on precisely thatissue. The Court granted the motion and dismissed Plaintiffs'case, finding UberBLACK drivers are independent contractors, andtherefore not within the ambit of the FLSA.

Judge Baylson applied the Third Circuit's three-decade old six-factor test in analyzing whether Plaintiffs were independentcontractors or Uber employees. The test-highly-similar to thatof other federal circuits -- requires the Court to ascertain:

1. The alleged employer's right to control the manner in whichthe work is performed;2. The alleged employee's opportunity for profit or loss;3. The alleged employee's investment in equipment or materials;4. Whether the service rendered requires a special skill;5. The degree of permanence of the working relationship; and6. Whether the service is integral to the alleged employer'sbusiness.

Of the six, the Court found factors 1, 2, 3, and 5 weighedheavily in favor of independent contractor status, while factors4 and 6 tilted only slightly towards an employee finding.Accordingly, the Court's ultimate conclusion that Plaintiffs wereindependent contractors was not a close call. In reaching thisresult, the Court found several facts critical:

The Court also gave substantial weight to the Service Agreementexecuted between Uber and its UberBLACK drivers. Among otherthings, the Agreement provided that (i) drivers are 'independentcontractors; (ii) Uber does not and "shall not" control thedrivers' performance of their duties; (iii) drivers have the"sole right" to determine the manner and means of utilizing theApp; and (iv) Uber has "no right" to require drivers to displayUber signage, wear a uniform, or otherwise display any Uberaffiliation. In short, the Court found it legally significantthat Uber's Service Agreement went "beyond merely characterizingthe extent to which Uber can control drivers [but] detail[ed] themany ways that Uber is not entitled to control [them]."

Takeaways

Judge Baylson's order is a seminal result -- not just for Uber,but for the entire rideshare technology industry. Indeed, anadverse outcome could have upended the entire space. Theeconomic repercussions stemming from a legal determination thatUber's 160,000-plus drivers are entitled to overtime simply bybeing 'Online' in the App more than 40 hours a week would havebeen staggering. Further, tort liability issues arising from afinding that this fleet of drivers are, in fact, Uber employeescould result in endless and costly litigation, all of which wouldinevitably waterfall onto consumers. And while Plaintiffs'counsel has vowed an appeal to the Third Circuit, the odds of areversal are likely slim.

For their part, businesses who desire to solidify independentcontractor status should take particular heed to the language ofUber's Service Agreement, which the Court found materiallycompelling. Indeed, far too often companies rely on boilerplatelanguage such as "you acknowledge you are an IndependentContractor," that is ultimately toothless when weighed againstthe reality of the parties' relationship. On the other hand,Uber's Agreement -- as Judge Baylson explicitly noted --contained affirmative covenants restricting what Uber itselfcould do in relation to the drivers' performance of their duties.Consequently, in light of this recent ruling, businesses shouldwork with counsel to reevaluate and solidify pre-existingindependent contractor agreements that rely on impotent, uniformlanguage that may expose them to liability. [GN]

In his recent decision in the matter of Heller v. UberTechnologies Inc., Ontario Superior Court Justice Paul Perellstayed an action by Uber drivers who claimed they should beconsidered employees of the ride-sharing app's creators underOntario's Employment Standards Act rather than independentcontractors to the company.

Justice Perell's decision did not touch on the merits of theclaim but stayed the action in favour of arbitration under aclause in the service agreement signed by all Uber drivers.

However, the case is just one of a number of similar matterscurrently before the courts, and the drivers' counsel, Torontoemployment lawyer Lior Samfiru -- lior@stlawyers.ca -- says heexpects more to follow.

"Employee misclassification is one of the top two or three issuescoming up in my practice right now; it's unbelievably common,"says Mr. Samfiru, co-founder of Samfiru Tumarkin LLP, adding thatJustice Perell's decision has been appealed.

Stephen Moreau -- smoreau@cavalluzzo.com -- a partner at labourand employment law boutique Cavalluzzo LLP in Toronto, says anincreasing number of businesses are engaging workers underagreements that describe them as independent contractors, ratherthan more formal employment agreements.

He recently launched a $20-million claim against Blyth Academy onbehalf of a number of former sessional teachers at the privateschool in Toronto.

The proposed class action alleges that teachers classified asindependent contractors, who were paid flat rate fees to instructcourses, missed out on overtime, vacation pay and severancepayments, as well as a host of other protections available toemployees under the ESA, such as the right to minimum wage.

In a statement of defence, the school denies the claims, none ofwhich has been proved in court, and says all its workers wereproperly classified.

"Employers do have to be cautious, and what this case reminds usis that there are employers in more traditional industries tryingit out for size and calling their workers contractors," Mr.Moreau says.

Mr. Samfiru, who advises employers as well as employees inworkplace matters, says the principals at smaller companies inparticular do not always appreciate the risks of enteringcontractor relationships with their workers.

"A lot of them are trying to do the right thing, without thinkingthat they are doing anything illegal, only to learn the hard waythat it's not as simple as calling someone an independentcontractor," he says. "It's about form over substance, so ifthey look and act like an employee, it doesn't matter if they'recalled something else in the agreement."

Mr. Samfiru explains that when courts or labour ministryofficials are asked to decide how a worker should be classified,the contract between the parties is not determinative, and theruling is made based on a number of other factors.

They include the amount of control the company exerts over theworking conditions of its contractor, such as the hours andmethods of work, as well as the level of integration between thetwo. In addition, which party provides the tools of the craftand who bears the financial risks in the relationship will alsohave an impact on how the arrangement is characterized in theeyes of the law.

"Employers generally don't see why the contract shouldn't beenforceable, but meanwhile, they're not withholding any taxes forpeople who they maybe should be treating as employees,"Mr. Samfiru says. "There are substantial penalties formisclassification and, hopefully, as these issues get moreattention, more employers will appreciate their legalobligations."

According to Toronto employment lawyer Andrew Monkhouse, manyemployers are attracted to contractor relationships with workersby the accounting simplicity of a smaller workforce.

"In my experience, it's motivated by the tax implications, ratherthan avoiding vacation pay or other ESA entitlements. It can bequite onerous on small businesses to do statutory deductions foremployment insurance and [the Canada Pension Plan] on a monthlybasis," he says. "But over time, misclassification can hurtworkers."

Mr. Monkhouse says scrutiny on this type of arrangement is likelyto spike in the near future, following the passage at Queen'sPark of Bill 148, the Fair Workplaces, Better Jobs Act. Thebill, which received Royal assent in November 2017, altered theESA, placing the burden on employers to prove that contractorsare not in fact employees should a dispute arise overclassification.

The new law also came with a promise to boost enforcement, withfunding provided for as many as 175 new employment standardsinspectors.

"Reversing the onus may well result in more class actions movingforward claiming misclassification," predicts Mr. Monkhouse, whoacts for a group of document review lawyers suing Deloitte LLP ina $400-million lawsuit alleging the accounting giant improperlyclassified them as independent contractors.

Ryan Plener -- ryan-plener@hicksmorley.com -- a lawyer with theToronto office of management-side employment law boutique HicksMorley Hamilton Stewart Storie LLP, says the recent legislativechanges mean now is a good time for employers to reassess theirrelationships with contractors.

"It's always important to ensure people are properly classified.Whenever I meet with clients, one of the things I ask them to dois to send me a copy of their contracts, so that we can reviewrelationships and understand whether or not they fit into thecategory where they have been placed," he says.

"The government is signalling that employers should be cognizantof their relationships and that education is important on allsides."

Those who do move forward with claims will still have to convincea judge that their case is worthy of certification as a classaction.

In January, Justice Perell's decision in Sondhi v. DeloitteManagement Services LP certified the document review class actionagainst Deloitte after accepting a replacement, more suitablerepresentative plaintiff than the one originally proposed.

Mr. Monkhouse says that his focus is now on formally notifyingthe class of more than 400 lawyers of the certification, as wellas further document discovery before the case heads toward acommon issues trial, where the classification issue will besettled.

In the Uber case, the drivers' action was shut down pre-certification, though Mr. Samfiru remains hopeful that JusticePerell's decision in that matter will be overturned on appeal.

The judge ruled that drivers were bound by an arbitration clausein their service agreement, which requires all disputes to beresolved by arbitration in the Netherlands and that the resultwas not precluded by the ESA. But Mr. Samfiru says it's"practically unworkable" to expect individual Ontario drivers toproceed with arbitration claims abroad.

"In our view, if the contract provides a remedy that is notaccessible in reality, then it has no meaning," he says.

Mr. Plener says Justice Perell's decision is a useful one forcounsel on both sides of the bar.

"Whether you're acting for employers or employees, it's helpfulto have the principle stated upfront that arbitration agreementsare not necessarily or expressly ousted by the ESA," he says.[GN]

UNITED STATES: Iranians Sue Over Refugee Status Applications------------------------------------------------------------Susan Crabtree, writing for The Washington Free Beacon, reportsthat nearly 100 Iranians, many of whom are either Christians orother persecuted religious minorities, have filed a class-actionlawsuit against the U.S. government challenging the mass denialsof their applications for refugee status under an expedited U.S.program.

The Iranian individuals and their family members applied forrefugee resettlement in the United States under the LautenbergAmendment, a law Congress first passed in 1989 to facilitaterefugee admission of Jews fleeing the former Soviet Union.Lawmakers expanded the program in 2004 to include religiousminorities in Iran.

The program has admitted thousands of Iranian Christians andother religious minorities over the past decade at a near 100percent acceptance rate without incident, according to U.S.lawmakers familiar with the acceptance record. However, inFebruary the Department of Homeland Security denied the latestgroup, who were awaiting resettlement in Vienna as required.

The DHS letters of denial did not provide the reasons behind thedecision, stating only that the applicants were being barred fromresettling in the U.S. "as a matter of discretion."

The DHS did not respond to a request for comment about thelawsuit.

A State Department spokeswoman earlier this year did notelaborate on why DHS had denied the group of Iranians, sayingonly the "safety and security of the American people areparamount," and that "Iranian refugee applicants under thisprogram are subject to the same security vetting processes thatapply to refugee applicants of other nationalities considered foradmission to the United States of America."

The news was a devastating blow to the many in the group, who hadbeen waiting in Vienna for nearly a year while the U.S.government considered their cases.

Many of them now worry they will not be able to seek asylumelsewhere, and will be forced to return back to Iran, where theycould face greater persecution for trying to emigrate to theU.S., and possibly imprisonment and death in Iran's notoriouslyharsh prisons.

The denials have raised concerns in Congress among champions ofreligious freedom and the Lautenberg program, including Reps.Randy Hultgren (R., Ill.) and James McGovern (D., Mass.), whoco-chair the bipartisan Tom Lantos Human Rights Commission. Thecommission is dedicated to advocating on behalf of persecutedminorities around the world.

Critics said the U.S. government has mistreated the group byinviting them to leave Iran, sell their worldly possessions, andtravel to Vienna for additional screening before admitting themto the United States, a process which is usually perfunctory.

They also worry that high-profile denials jeopardize theLautenberg Program itself and the refugee status it has providedpersecuted minorities for decades.

The International Refugee Assistance Project (IRAP) at the UrbanJustice Center, along with law firm Latham & Watkins, isrepresenting the group of Iranians.

"The U.S. government extended a helping hand to these IranianChristians, Mandeans, and other persecuted religious minoritieswho wanted to join their family members in the United States,only to cruelly whip it away for no discernible reason at all,"Mariko Hirose, IRAP's litigation director, said in a statement."The government's conduct betrays America's long-standingcommitment to be a beacon of religious freedom, as embodied bythe Lautenberg Amendment."

The Iranians are seeking the court's intervention to enforce theLautenberg Amendment so they might have the opportunity toreunite with family members in the U.S. and have the chance topractice their religious beliefs in the safety of the country.

Denying the Iranian individuals without stating anything beyondit being "a matter of discretion" prevents them from requestingDHS review and puts their lives in danger, the lawsuit charges.

The plaintiffs in the suit include U.S. citizens with familymembers who were part of the group who the U.S. governmentrecently denied.

They include a mother who lives in San Jose, Calif. who isseeking to reunite with her diabetic daughter and younggrandchild; a son who is eager to bring his mother anddevelopmentally disabled adult brother to the U.S. for betteraccess to treatment and caregiving support; and a widow strandedin Vienna with her elderly father and disabled toddler, accordingto the IRAP.

"The denial has had a terrible impact on me and my family," oneof the plaintiffs, who preferred to remain anonymous, said in astatement. "My son suffers from repeated epileptic attacks andcongenital hydrocephalus, requiring regular medical attention,which we do not have access to here in Austria."

Under the program, U.S. residents can submit applications onbehalf of refugee applicants residing in Iran, as long as theybelong to a recognized religious minority and can prove theirmembership in the persecuted group.

Applicants must pass an initial screening while they are still inIran. If that process is successful, the U.S. "invites" themthrough a formal letter to travel to Vienna, Austria, to continuethe processing of their refugee applications from a safelocation.

The United States and Austria have a longstanding agreement thatauthorities in Vienna will provide temporary refuge for theLautenberg program applicants. Critics of the February DHSdenials worry that agreement is now in jeopardy because therefugees have been waiting in limbo, many for more than a year inVienna, running out of money for food and housing.

The White House and other "high-level officials" also have beenmonitoring the plight of the group of Iranian applicants to tryto prevent their deportation back to Iran or to countries wherethey face few job prospects.

Messrs. Hultgren and McGovern in late February sent a letter toVice President Mike Pence, asking for a clearer rationale aboutDHS's denial of the group.

"After years of successful and prompt admittance of Iranianreligious minorities to the United States under the Lautenbergprogram, DHS must provide Congress with details about these visadenials," the lawmakers said. "And whatever the reasons, we hopethe other persecuted Iranians temporarily residing in Austriawill receive prompt approvals: their safety and security shouldbe our top priority. Under no circumstance should those seekingrefugee status be repatriated to Iran, where they could besubjected to arrest and torture. We urge our allies to engageand offer safe harbor to these refugees." [GN]

UNITED STATES: Patent Owners Sue Over AIA Post-Grant Proceedings----------------------------------------------------------------In CHRISTY, INC., on behalf of itself and all others similarlysituated, Plaintiff, v. UNITED STATES OF AMERICA, Defendant, CaseNo. 18-657 C (Fed. Cl.), the plaintiffs seek just compensationfor the taking of investors' and patent owners' recognized patentproperty rights effectuated by the United States Patent andTrademark Office ("USPTO") and by the alleged authority ofrecently created post-grant proceedings of the Leahy-SmithAmerica Invents Act ("AIA").

The AIA created a new type of proceeding called "Inter PartesReview" ("IPR") and the Post-Grant Review (PRG) proceedings underwhich a person who is not the patent owner may petition the USPTOto review the validity of an issued patent within nine months ofits grant or issuance of a reissue patent. The Plaintiff tellsthe Court that the post-grant proceedings created through the AIAcompletely decimated the value of issued patents. According tothe Plaintiff, as of January 2015, 77% of all patent claimsreviewed have been invalidated and, "more recently, only 4percent of all petitions for review proceedings filed with thePatent Trial and Appeal Board ("PTAB") end with a final writtendecision in which all claims are upheld as patentable." Thecosts of these post-issuance proceedings to individual inventorsand to the economy have been "staggering," according to thePlaintiff, estimating the damage to the economy resulting fromthe creation of the IPR process alone as around $1 trillion.

"The most disturbing aspect of this, however, is the fact thatthose property rights were granted, and they were later takenaway, and this was done so without the just compensation that isrequired under law," the Plaintiff said.

The Plaintiff alleges that the USPTO's invalidation of thePlaintiff's and Class member's patent claims was a taking withoutjust compensation in violation of the Fifth Amendment of theConstitution. The compensation due here includes, but is notlimited to, expected royalties and other payments related to useof the patents.

The complaint pointed out that the U.S. Supreme Court, in OilStates Energy Services, LLC, v. Greene's Energy Group, LLC, CaseNo. 16-712, acknowledged that the IPR process is "geared to be anerror correction mechanism and not a substitute for litigation,"which, in this case, according to the Plaintiff, the USPTO shouldnever have collected any issuance fees or maintenance fees forany of the patents and claims that have been invalidated in anyPGP process, and the patent owners should never have had todefend those patents.

The case additionally seeks damages for the Defendant's breach ofcontract by failing to maintain in force the subject patentclaims for the terms prescribed in the patent grants for therelevant claims, including the recovery of attorney fees expendeddefending those same patents in post-grant proceedings, anyinvestments made in the inventions underlying those patents, anyexpected royalties or payments related to the patents, and allfees paid to the Defendant for the issuance of those patents.

In the alternative, the case seeks to recover fees that were paidby inventors and patent owners to the USPTO, like fees havingbeen exacted from the Plaintiff and Class members through the AIA-- according to the Defendant, these patents were issuederroneously by the USPTO in the first instance and thus all feesshould be returned to the Plaintiff and Class members.

Christy is the owner of United States Patent No. 7,082,640, thatwas subject to an PGP that resulted in its claims beinginvalidated and for which it was never (1) compensated with valuefor the property that was taken, including, but not limited to,for expected royalties and other payments for use of the patent,(2) reimbursed for attorney fees spent in defending the PGP, (3)compensated for investments spent on the subject invention thatwere thought to be protected by the subject patent, or (4)refunded for fees paid.

Members of the proposed Class are owners (or their assigns) ofthose patent applications, which were deemed to includepatentable subject matter and which were issued into validpatents and claims and were later invalidated by the PTAB, whichis part of the office of the USPTO.

Plaintiff worked for Defendants as a construction layout personfrom October 26, 2017 through March 2, 2018. Fuentes worked anaverage of 60 hours a week and was paid an average of $30.00 perhour but was never paid anything for any hours worked over 40hours in a week. [BN]

Polizois alleges that a debt collection letter she received fromVengroff (Collection Letter) violates the Fair Debt CollectionPractices Act (FDCPA) because it fails to adequately identify thecreditor to whom the debt is owed and fails to notify her thatthe stated amount owed might increase due to interest, fees, orcollection costs.

Section 1692e establishes a general prohibition against a debtcollector's use of any false, deceptive, or misleadingrepresentation or means in connection with the collection of anydebt.

Section 1692g(a)

Section 1692g(a) sets forth required disclosures for a debtcollector's initial communication to a consumer. As relevanthere, this section requires that the initial communicationinclude the amount of the debt and the name of the creditor towhom the debt is owed.

Section 1692f

Section 1692f is a catchall provision that states that a debtcollector may not use unfair or unconscionable means to collector attempt to collect any debt.

Creditor Identification

Polizois argues that the Collection Letter fails to adequatelyidentify Enzo as her creditor in violation of Section1692g(a)(2)'s requirement that a debt collection letter include"the name of the creditor to whom the debt is owed."

The Court disagrees.

Here, the Collection Letter states that Vengroff is a debtcollection agency that has been engaged by the above creditor,and the only entity identified in the Collection Letter is Enzo.The Collection Letter additionally states that, as of 04/23/2015ENZO CLINICAL LABS INC. has not yet received the past due amountof $51.74, further making clear that Vengroff is attempting tocollect a debt owned by Enzo. Moreover, Enzo is identified asVengroff's client at both the top and bottom of the CollectionLetter. Based on these uncontroverted facts, the Court concludesthat the least sophisticated consumer, reading the CollectionLetter as whole, would be aware that Enzo is the creditor. TheCollection Letter, therefore, satisfies Section 1692g(a)(2).The Collection Letter is not open to more than one reasonableinterpretation as to the identity of plaintiff's creditor, andthus is not deceptive or misleading as to that fact underSections 1692e and 1692e(10). The Court grants summary judgmentto defendant on the claims that the Collection Letter fails toadequately identify the plaintiff's creditor.

Amount of the Debt

The Plaintiff alleges that the Collection Letter's stated amountowed was misleading and deceptive under FDCPA Sections 1692e,1692e(2)(a), and 1692e(10). Specifically, the plaintiff allegesthat the Collection Letter violates these provisions because itdoes not notify the plaintiff that the amount due might increaseas a result of contractual interest, fees, and/or other costs.

In response, the defendant argues that the Collection Letter wasnot required to notify the plaintiff that the amount due mightincrease because the agreement between Enzo and the plaintiff didnot provide for interest or late payment fees, and neither Enzonor Vengroff ever attempted to collect interest or late paymentfees from plaintiff.

The Plaintiff additionally alleges FDCPA violations based on thedefendant's failure to indicate that the amount due mightincrease as a result of (1) collection costs (pursuant to theinvoices) and (2) prejudgment interest (pursuant to New York CPLRSection 5001). As noted in the plaintiffs opposition, thedefendant's motion for summary judgment does not address thoseclaims. At oral argument on the motion, the defendant argued thatincluding language regarding collection costs would have violatedSection 1692f because Enzo was not contractually or legallyentitled to collection costs from the plaintiff. The Courtrequested letter briefing on whether Enzo was entitled tocollection costs.

However, the parties have not briefed the broader issue ofwhether the defendant was required to notify the plaintiff thatthe amount owed might increase due to collection costs underSection 1692e (for instance, if Enzo sold the debt to a thirdparty who attempted to recover collection costs). The partieshave also not briefed the similar issue of whether the defendantwas required to include language regarding prejudgment interestunder Section 1692e.

Accordingly, given that the defendant did not specifically moveon those claims (or adequately brief the issues), the Court willnot determine whether summary judgment is warranted on thoseclaims.The Court grants summary judgment to the defendant on (1) theclaims that the defendant failed to adequately identify Enzo asthe plaintiff's creditor, and (2) the claims that the defendantwas required to notify the plaintiff that the amount owed mightincrease due to contractual interest and late payment fees.

A full-text copy of the District Court's March 22, 2018Memorandum and Order is available at https://tinyurl.com/y7snycswfrom Leagle.com.

The Plaintiff alleges that he purchased a Mainstays six-piecepatio set from Wal-Mart Store #571 in Georgetown, Kentuckysometime in 2014. He claims he assembled the set at his homeaccording to the exact specifications in the instruction manual.Two years later, he alleges he was sitting in one of the chairswhen the back suddenly broke, trapped his left ring finger, andamputated a portion of that finger as he fell to the ground.

The Plaintiff claims Wal-Mart knew or should have known that thepatio set was defective because Wal-Mart recalled a "nearlyidentical" card table and chair set in January 2014.

The Plaintiff proposes two classes of Plaintiffs, the "KentuckyClass" and the "Nationwide Class," each of whom include personswho purchased a Mainstays six-piece patio set from Wal-Martthrough its website or in stores from May 2013 to the present.He brings the following causes of action on behalf of theputative class: violation of the Kentucky Consumer ProtectionAct; violation of other states' consumer protection statutes;violation of the Uniform Deceptive Trade Practices Act in 23states (which does not include Kentucky); common law negligence;breach of implied warranty of merchantability; and unjustenrichment. The Plaintiff individually asserts a common lawnegligence claim and a claim for violation of the KentuckyProduct Liability Act.

The matter is before the Court on the Defendant's Motion to DenyClass Certification and Strike Class Allegation from theComplaint. The Plaintiff has replied and the Defendant hasresponded.

Judge Hood agrees with the Defendant that although it is early inthis proceeding, the instant motion is not premature because noamount of discovery will alter the basic facts in the case thatpreclude class certification. He finds that the Plaintiff cannotestablish that Rule 23(a)(2)'s commonality requirement issatisfied by the proposed class action. Importantly, the "sameinjury" requirement is not satisfied by merely showing that allputative class members have suffered a violation of the sameprovision of law.

The Judge cannot accept the Plaintiff's argument that simplybecause Wal-Mart recalled a card table set in 2014, Wal-Martviolated numerous state consumer protection and product liabilitylaws by selling the patio set he and all putative class memberspurchased. As in General Telephone Co. of Southwest v. Falcon,there is a wide gap between Jason Duckworth's claim that thepatio set he purchased was defective and the selling of itdeceptive, and his claim that all others who purchased that samepatio set were deceived and sold a defective product. His onlysupport for the latter claim is that Wal-Mart previously recalledan entirely different type of table and chair set, and his ownclaims are extremely fact specific based on the assembly,storage, and use of the chair in question. This is insufficientto satisfy Rule 23(a)(2).

The Judge has determined that the putative class does not meetthe prerequisites of Rule 23(a)(2), thus no further inquiry isnecessary. Accordingly, he granted the Defendant's Motion toDeny Class Certification and Strike Class Allegation from theComplaint.

A full-text copy of the Court's March 21, 2018 Memorandum Opinionand Order is available at https://is.gd/LWgutI from Leagle.com.

WHITING PETROLEUM: Transferred "Schindler" Suit to S.D. Texas-------------------------------------------------------------The class action lawsuit filed on April 27, 2017 captioned CraigSchindler, individually and on behalf of all others similarlysituated v. Whiting Petroleum Corp., Case No. 1:17-cv-01051 wastransferred on February 28, 2018, from the U.S. District Courtfor the District of Colorado to the U.S. District Court for theSouthern District of Texas (Houston). The District Court Clerkassigned Case No. 4:18-cv-00634 to the proceeding.

The Plaintiff seeks to recover unpaid overtime wages and otherdamages under the Fair Labor Standards Act.

The case involves a chain of three Hungry Howie's franchiseslocated in Haslett, Perry, and St. Johns, Michigan. ThePlaintiff was a delivery driver at the Perry location from July2015 to Sept. 1, 2016. The Defendants required delivery driversat each location to use their personal vehicles to make pizzadeliveries. They paid delivery drivers a cash wage of $5 perhour when they were making deliveries. They paid deliverydrivers a run charge of $.75 per delivery, and Perry driversreceived $1.75 for deliveries to Lainsburg, Michigan. TheDelivery drivers also received tips.

In all store locations, the Defendants posted a "Minimum WageNotice to Tipped Employees." This notice stated that theDefendants would take a tip credit that was exactly thedifference between the drivers' cash wage and the Michiganminimum wage. In other words, they would only take just enoughtip credit to get their delivery drivers' salary to the exactminimum wage.

On July 6, 2016, the Plaintiff filed a class action complaintagainst the Defendants. He filed his First Amended Complaint onSept. 19, 2017. He alleges that throughout his time as adelivery driver at the Perry franchise, the Defendants paid himand similarly situated drivers the exact Michigan minimum wage.He also alleges that the Defendants did not adequately reimbursehim and other drivers for vehicle expenses incurred whiledelivering pizzas for the Defendant. Therefore, the Defendantsactually paid the Plaintiff and similarly situated drivers belowthe federal and Michigan minimum wages. The Defendants denythese allegations. On Oct. 5, 2017, the Court certified thePlaintiff's class.

On Dec. 29, 2017, the Plaintiff filed a Motion for PartialSummary Judgment. The Defendants conceded summary judgment infavor of the Plaintiff on the issue of Defendant Dittrich'sstatus as an employer of the Plaintiff and other deliverydrivers. They opposed the Plaintiff's Motion on the issue of theDefendants' application of the tip credit. The Plaintiff repliedon Feb. 2, 2018. The Defendants filed a Motion for SummaryJudgment on Jan. 1, 2018. The Plaintiff opposed the Motion onJan. 23, 2018. The Defendants replied on Feb. 6, 2018.

Judge Drain finds that it is uncontested that the Defendantsposted a "Minimum Wage Notice to Tipped Employees" as theirnotice about the tip credit. This notice stated that they wouldtake a tip credit equal to the difference between the cash wagethey paid and the minimum wage. In other words, the Defendantsstated they would only take as much tip credit as necessary toget delivery drivers' salaries to the exact minimum wage. Now,the Defendants argue that they can take a tip credit in excess ofthe amount that they gave notice to their employees about tocover employee expenses. However, the Judge says, as the caselaw illustrates, the retroactive application of a higher tipcredit does not constitute adequate notice. Case law that existson this topic disfavors allowing employers to take a higher tipcredit without notice of the new amount. The Defendants presentno contrary case law to refute this trend. Therefore, he holdsthat the Defendants cannot use tips in excess of the minimum wageto offset unreimbursed vehicle expenses.

In conclusion, the Judge granted the Plaintiff's Motion on bothissues. He holds that Defendant Dittrich is an employer of thedelivery drivers. He also holds that the Defendants may not usetips in excess of the minimum wage to cover vehicle and otheremployee expenses.

As to the Defendants' Motion for Summary Judgment, the Judge saysthe record reflects that the Defendants only paid their deliverydrivers compensation equal to the exact minimum wage plus thedelivery commission each pay period. The minimum wage salary andthe driver commission paid to the Plaintiff each week was notearning enough to meet the minimum wage. The Plaintiff isentitled to compensation for vehicle expenses that were taken outon behalf of the Defendants.

The Judge holds that the Plaintiff has brought sufficientcontradictory evidence that supports his claim of underpayment.The Defendants cannot rely on their arguments that they can useall tips or use tips in excess of the tip credit to meet minimumwage requirements. Therefore, there is a genuine factual disputeabout whether the Defendants' pay structure violated minimum wagelaws that precludes summary judgment. In conclusion, he deniedthe Defendants' Motion for Summary Judgment.

A full-text copy of the Court's March 21, 2018 Opinion and Orderis available at https://is.gd/L2Gy6D from Leagle.com.

YAHOO! INC: Requires Users to Give Up Right to Join Class Actions-----------------------------------------------------------------Ina Fried, writing for Axios, reports that Verizon's Oath unit,which includes Yahoo, AOL and other media properties, is making achange that requires users to give up their right to be part ofclass action lawsuits. All disputes will have to be handledthrough arbitration, according to its revised terms of service.

Why it matters: Yahoo, as you'll remember, has had some databreach issues in the past. Litigating such matters as anindividual consumer, even through arbitration, is impractical.

"Hopefully, disputes will never be an issue, but in the case ofone, this allows a third-party arbitrator to help us resolvethem," Oath says in a summary page explaining the move. "We'vealso added a class action waiver. These provisions are animportant part of our relationship with you, so please read themcarefully."

A Yahoo representative was not immediately available to explainthe rationale for the new policy.

Why it's changing: The new dispute policy is part of broaderterms of service changes going into effect immediately for newusers and as of May 25 for existing ones.

While lots of companies are making changes ahead of that date tocomply with a new European data protection law known as GDPR, thearbitration clause is specific for U.S. users. [GN]

* Canada High Court Urged to Tackle Umbrella Purchaser Claims-------------------------------------------------------------Michael McKiernan, writing for Law Times, reports thatcompetition lawyers are calling on the Supreme Court of Canada tosettle the intensifying debate over the viability of umbrellapurchaser claims.

A number of class actions launched across the country under s. 36of the federal Competition Act, which provides for civil claimsby consumers who paid inflated prices as a result of conspiraciesbetween competitors, include umbrella purchasers among theirproposed class members. These are individuals who boughtproducts from non-conspirators, but who allege they were stillovercharged as an indirect result of price fixing in the broadermarketplace for the goods or services.

Last summer, in Godfrey v. Sony Corporation, the B.C. Court ofAppeal confirmed the judgment of a lower court judge who ruledthat umbrella claims are available under s. 36, puttingjurisprudence from the province in direct opposition to the lineemerging in Ontario.

Just months before the decision from B.C.'s top court, in Shah vLG Chem, Ltd., a unanimous three-judge panel of Ontario'sDivisional Court ruled that Superior Court Justice Paul Perellwas right to deny certification to the claims of umbrellapurchasers in an action concerning alleged global price fixing oflithium ion batteries.

Ontario's Court of Appeal is scheduled to hear arguments in thesame case on May 7, but Nikiforos Iatrou --niatrou@weirfoulds.com -- head of the competition law practicegroup at Weir Foulds LLP, says he's already seen enough tojustify a full hearing at the Supreme Court of Canada.

"There are two divergent approaches right now on what is anacceptable theory of damages," says Mr. Iatrou, a partner in thefirm's Toronto office. "At this point, it seems clear that thesecases need to head up so that we know definitively whether, forthe purposes of certification, umbrella damages claims canproceed.

"Without some direction from the Supreme Court and a unified setof ground rules, it makes bringing and defending these classactions far too complicated," he adds.

But Mr. Iatrou says he's hoping for a more comprehensive judgmentfrom the nation's top court than it delivered last time acompetition class action issue came before it -- a trilogy ofdecisions in late 2013 that related to the certification ofindirect purchaser claims.

"The Supreme Court essentially allowed the indirect purchaserclaims to go forward at certification and left it up to the trialjudges to sort out which ones can be proven. My concern is thatit will do the same with umbrella purchasers," he says. "Isuspect that if one was litigated all the way through, plaintiffswould not actually be able to prove all of these various types ofdamages, but the difficulty is that, from a practical point ofview, we have never had a fully contested competition classaction."

In the meantime, Mr. Iatrou says, the status quo favoursplaintiffs, because without certainty over the viability ofumbrella purchaser claims, it's in their interests to tag them onand hope for the best at certification.

But Bridget Moran -- bridget.moran@siskinds.com -- a lawyer withSiskinds LLP in London, Ont., says it would be unfair to excludeumbrella purchasers in cases of alleged price fixing.

"The theory is that if the conspiring defendants had enoughcontrol of the market to fix prices, then it allowed theircompetitors to raise prices as well. In those circumstances,class members who bought goods from non-defendant manufacturersshould also be able to recover the amounts they wereovercharged," she explains.

Ms. Moran's firm is part of the consortium representing theplaintiffs in Shah, the lithium ion battery case, and is hopingOntario's Court of Appeal follows the example of its B.C.counterpart once it has heard arguments in the case in April.

In his original 2015 decision in the case, Justice Perellcertified the class action, but he excluded the claims ofumbrella purchasers. The Divisional Court upheld the decision,agreeing that they had no reasonable cause of action due to the"indeterminate and uncircumscribed" lability to which theirinclusion would expose the defendants.

"Adding in the Umbrella Purchasers greatly expands the members ofthe class, and does so by adding persons with whom therespondents had no dealings," wrote Ontario Superior CourtJustice Ian Nordheimer on behalf of his Divisional Courtcolleagues. "Indeed, if the Umbrella Purchasers are included inthe class, it is not clear how the respondents would even knowhow many such purchasers they might be found liable to."

In Godfrey, B.C.'s appeal court considered an alleged conspiracyamong the manufacturers of optical disc drives and productscontaining them that resulted in higher prices between 2004 and2010. Writing for himself and two colleagues on the bench, B.C.Appeal Court Justice John Savage said that he was convinced thelanguage of s. 36 of the Competition Act is capable of allowingumbrella claims.

"I acknowledge there is a tension between, on the one hand,concerns over what some may view as a very broad scope ofliability resulting in unfairness to defendants accused of price-fixing and, on the other hand, the need to give effect to theobjectives sought by the Competition Act such as compensation,deterrence, and behaviour modification," Justice Savage added."To the extent that such a tension arises in the present context,however, I am convinced it must be resolved in favour of thelatter policy objective."

From an international point of view, Paul-Erik Veel --pveel@litigate.com -- a partner at Toronto litigation boutiqueLenczner Slaght Royce Smith Griffin LLP, says the B.C. line ofjurisprudence fits with the European approach to umbrellapurchasers, while Ontario's more restrictive view is reflected inthe U.S., where similar claims are increasingly failing at trial.

He says he would rather see umbrella claims blocked, but he addshe would appreciate a Supreme Court ruling on the issue.

"It's unusual with these types of cases to see such a stark andclear divergence between courts of different provinces," Mr. Veelsays. "Although I'm sympathetic to the very valid policy goals ofthe Competition Act, in my view, umbrella purchasers are a bridgetoo far.

"Competition class actions are already unwieldy and cumbersomeenough and will become substantially more so with the addition ofumbrella purchasers without much benefit to consumersultimately," he adds. [GN]

It was the third consecutive annual rise in spending aftersteadily decreasing expenditures from 2011 to 2014. The upwardtrend is expected to continue as companies across multipleindustries spent $2.24 billion defending class action lawsuits in2017, with spending projected to reach a high of $2.39 billion in2018.

Survey respondents reported their average spend per class actionincreased substantially over the past two years, even as theoverall number of class action cases per company remainedconsistent.

These and other results of the 2018 Carlton Fields Class ActionSurvey were compiled from 411 interviews with general counsel,chief legal officers, and direct reports to general counsel at385 companies in multiple industries.

The number of companies managing class action cases rose to 59percent in 2017 up from 53.8 percent in 2016. Likewise, theoverall risk faced by respondent companies increased. Thecombined volume of bet-the-company and high-risk matters tickedup to 26.2 percent in 2017.

This year's survey found that labor and employment (particularly,wage and hour litigation), consumer fraud, product liability, andantitrust matters collectively accounted for two-thirds of classaction spending by respondents, with data privacy and securitymatters lurking as a potential next wave in 2018. Internet-connected products, such as medical devices and home appliances,are one significant source of concern associated with potentialdata breach litigation in the near future.

Among additional findings:

Despite a reduction in pending labor and employment casescompared to 2016, these matters continued to represent thehighest percentage of class actions, accounting for 24.7 percentof all matters and 21.6 percent of all spending. Notably, 40percent of companies identified wage-and-hour litigation as theirgreatest employment related class action threat. Outside counselplayed a critical role in early case assessment for the fourthconsecutive year, while the number of in-house lawyers assignedto manage class actions did not increase. Nearly 80 percent ofcompanies described outside counsel's role in early caseassessment as "essential" or "substantial," up from 73 percent in2016. As the number of class actions continued to rise, the useof alternative fee arrangements (AFAs) increased in 2017. Forty-nine percent of companies reported using AFAs, up from 35.8percent in 2016. Fixed fees remained the most prevalent type ofAFA among companies using them. But companies reported increaseduse of every other type of AFA from 2016 to 2017. Most companiesreported that the current political climate in Washington, D.C.has had no immediate impact on their management of class actions.Conversely, 11 percent of companies reported that the politicalclimate impacted regulatory oversight and involvement related totheir business.

Carlton Fields -- http://www.carltonfields.com-- has more than 300 attorneys and government and financial services consultantsserving clients from offices in California, Connecticut, Florida,Georgia, New York, and Washington, D.C. The firm is known forits national litigation practice, including class action defense,trial practice, white-collar representation, and high-stakesappeals; its insurance practice, including life and financiallines, property and casualty, reinsurance, and title insurance;its regulatory practice; and its handling of sophisticatedbusiness transactions and corporate counseling for domestic andinternational clients. [GN]

* Germany Postpones Decision to Launch Law on Class Actions-----------------------------------------------------------Daniel Delhaes and Dietmar, writing for Handelsblatt Global,report that German diesel car owners trying to get compensatedfor VW's emissions-cheating scandal have been crying out for achange in the law to allow them to file US-style class-actionlawsuits against the auto giant.

But even though Chancellor Angela Merkel's conservatives and thecenter-left Social Democrats agreed in their lengthy coalitiontalks to permit such cases in future, a planned cabinet decisionto get the ball rolling has been postponed, Handelsblatt haslearned from government sources. Ministers will now discuss theplanned legislation in early May, according to the sources."There's still a need for negotiation on small points," onesource said.

The SPD has been pushing for the law while the conservatives havebeen reluctant to take action and still appear intent on sparinga wave of lawsuits against the all-important auto industry, whichemploys some 800,000 people.

Class-action suits refer to cases in which an entire group ofplaintiffs is represented collectively by just one member of thatgroup, which could be an individual or a firm. The conceptoriginated in the US and has spread to other common-lawcountries, and even some civil-law systems in Europe. German lawcurrently makes no provision for it.

Ms. Merkel underlined her support for the auto industry when shevoiced reservations about forcing companies to introduceexpensive hardware modifications to reduce high nitrogen-oxideemissions in diesel cars. And her conservatives, backed byindustry associations, are the ones demanding a limit on thenumber of organizations entitled to mount collective suits. Theywant to avoid the US phenomenon of big law firms pursuing class-action claims as a business model.

Despite resistance from their coalition partners, the SocialDemocrats are confident the planned legislation on class-actionwill come. "We're almost ready," said SPD lawmaker JohannesFechner.

The new law would only allow associations to lead class-actionsuits and they must have existed for at least four years. If itis an umbrella association, it must consist of at least 10 memberassociations that are mainly involved in consumer protection.Individual associations eligible for such lawsuits must have atleast 350 members.

The law may end up entitling only 20 institutions to launch intoclass-action suits in Germany. They include the General GermanAutomobile Club (ADAC) and the VZBV Federation of German ConsumerOrganizations. They'll be able to sue a company -- let's say forthe sake of argument VW -- if at least 10 consumers have crediblyshown that they were affected by the diesel scandal.

If the draft law is agreed before the summer recess, it couldstill come into force as planned on November 1. [GN]

* Investor Class Actions Challenging M&A Transactions on the Rise-----------------------------------------------------------------Alison Frankel, writing for Reuters, reports that the singlebiggest development in securities class action litigation in thepast two years is the rise of federal court suits by investorschallenging M&A transactions.

According to reports by both Cornerstone and NERA EconomicConsulting, there were nearly 200 class actions by investorsclaiming to have been misled by corporate deal disclosures --more than double the 85 M&A challenges filed in 2016 and morethan five times as many cases as investors filed in 2015. (Youknow why this has happened: Delaware Chancery Court cracked downon fee awards for plaintiffs' lawyers who obtained onlyadditional proxy disclosures so filings quickly shifted out ofDelaware and into federal court.)

Cornerstone's report breaks down M&A challenges by federalcircuit. Courts in the 9th Circuit saw a disproportionate share:41 new M&A class actions were filed in the circuit in 2017, morethan in any other circuit.

The 9th Circuit's percentage of all M&A class action filings diddecrease between 2016 and 2017. In 2016, nearly 30 percent (25 of85) of all of the M&A class action filings were in the 9thCircuit; in 2017, the percentage fell to about 21 percent. The3rd Circuit was close behind, with nearly 20 percent, or 39cases.

Ms. Frankel said "I would not be at all surprised if the 9thCircuit widens the gap in filings this year. If investors havethe option of suing over an M&A deal in California, Nevada orother West Coast states, I suspect they will after a decision bythe 9th U.S. Circuit Court of Appeals in Varjabedian v. EmulexCorporation (2018 WL 1882905), a shareholder challenge to AvagoTechnologies' $610 million acquisition of Emulex in 2015."

The 9th Circuit said the statute on deal disclosures, Section 14of the Securities and Exchange Act of 1934, requires a showingonly of negligence, not fraudulent intent (or scienter, if youwant to get technical). "We are aware that our holding todayparts ways from our colleagues in five other circuits," wroteJudge Murguia for the panel. "However . . . we are persuadedthat intervening guidance from the Supreme Court compels theconclusion that Section 14 of the Exchange Act imposes anegligence standard."

The first decision to address the proper standard for Section 14claims was the 2nd Circuit's ruling in Chris-Craft Industries v.Piper Aircraft (480 F.2d 341) back in 1973. The Chris-Craftruling analogized claims under Section 14 to claims of securitiesfraud under Rule 10b-5. Since courts have held that investorssuing under Rule 10b-5 must show a corporation's intent todeceive, the 2nd Circuit said, the same standard should apply toclaims under the newer-vintage law prohibiting misleading dealdisclosures.

In the decades since the Chris-Craft decision, the 3rd, 5th, 6thand 11th Circuits have all agreed with the 2nd Circuit thatinvestors have to allege scienter to sue under Section 14.

The 9th Circuit, however, looked at the language of the statuteand two U.S. Supreme Court rulings -- 1976's Ernst & Ernst v.Hochfelder (96 S.Ct. 1375) and 1980's Aaron v. Securities andExchange Commission (100 S.Ct. 1945) -- to conclude those othercircuits were wrong. The statute, the court observed, says it isillegal for a person to make untrue statements or omit materialinformation about a tender offer or to engage in any fraudulentor deceptive acts related to a tender offer. The word "or" iscrucial, according to the 9th Circuit. It shows that Congressintended to proscribe two different offenses -- and only thesecond offense mentions deception.

It's true that Rule 10b-5 contains the same text, the 9th Circuitsaid, and the Supreme Court held in the Ernst & Ernst decisionthat 10b-5 claims require allegations of fraudulent intent. Butaccording to the 9th Circuit in Emulex, the Supreme Court reachedthat conclusion by looking back at the statute the SECinterpreted to draft Rule 10b-5, Section 10 of the Securities andExchange Act. (Going into the weeds a bit here but for that youcan blame the 9th Circuit.) That section allows the Securitiesand Exchange Commission to regulate "manipulative or deceptive"statements.

"Put simply, Rule 10b-5 requires a showing of scienter because itis a regulation promulgated under Section 10(b) of the ExchangeAct," the 9th Circuit said in Emulex. "This rationale regardingRule 10b-5 does not apply to Section 14(e), which is a statute,not an SEC rule."

The 9th Circuit said the Supreme Court's interpretation of yetanother securities provision, Section 17 of the Securities Act of1933, confirms its analysis. In the Aaron case, the justicesfound that Section 17, which regulates fraud in securitiesofferings, requires only a showing of negligence, not intent todeceive. Section 14 of the 1934 Act contains almost the samelanguage as Section 17 of the 1933 Act, the 9th Circuit said, soit makes sense to apply the Aaron reasoning -- despite contraryconclusions from all of the other federal circuits.

Ms. Frankel said "I should point out that in the surge of recentM&A challenges in federal court, motions to dismiss are seldomactually litigated. The vast majority of Section 14 classactions are voluntarily dismissed by shareholders, sometimesafter negotiations in which defendants agree to additional proxydisclosures, but almost always without much litigation. Still,if the Emulex decision holds up, plaintiffs' lawyers will haveadditional leverage. "

"I emailed Emulex counsel Eric Landau -- elandau@jonesday.com --of Jones Day and Avago Technologies Matthew Rawlinson --matt.rawlinson@lw.com -- of Latham & Watkins to see if there areplans to ask the entire 9th Circuit or the Supreme Court to takea look at the case, considering both the circuit split and theincreasing incidence of Section 14 class actions. I didn'timmediately hear back."

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